The Right to Bear Arms in State Supreme Courts

Introduction

Among legal scholars, the Second Amendment to the
United States Constitution[1] has
received ever-increasing attention over the last decade.[2] (p.1178) (p.1179) From being ignored as "the Embarrassing Second Amendment,"[3] the
Constitution's right to keep and bear arms is now discussed by the most
prestigious law journals[4] and
by the most important constitutional law professors.[5] Yet
the increased scholarly attention paid to the Second Amendment has not been
matched by commensurately increased judicial attention.

The Supreme Court in the last five years has offered dicta twice
which suggest that the Court shares the academy's view of the Second Amendment
as an individual right.[6] Yet
the number of cases (two) which have relied on the Second Amendment to declare a
law unconstitutional is no higher today than it was twenty years ago.[7] During this period, the only law which was (p.1180) even (slightly) judicially jeopardized by the Second
Amendment was the federal Gun-Free School Zones Act of 1990.[8] In declaring the law outside the scope of the Congressional power over interstate
commerce,[9] the Fifth Circuit suggested in passing that the law might also
be problematic on Second Amendment grounds.[10]
The Supreme Court, affirming the Commerce Clause holding, did not mention the
Second Amendment.[11]

The story of the right to keep and bear arms under state
constitutions is just the opposite. From the 1820s until the present, courts
have used state constitutional rights to arms to strike down various gun control
laws. Altogether, twenty weapons laws have been declared void as a result of a
state right to keep and bear arms.[12]
Forty-three state constitutions contain some kind of right to bear arms
provision, making the right to arms among the more ubiquitous civil liberties
guaranteed by state constitutions.[13] (p.1181) (p.1182) (p.1183)

Yet popular debate over gun control, which focuses intensely on the
federal Second Amendment, largely neglects state constitutional provisions,
provisions which are usually far more relevant to proposed state and local gun
controls than the Second Amendment. Compared to the Second Amendment, legal
scholarship has paid relatively little attention to state constitutional arms
provisions.[14](p.1184)

This article attempts to redress the imbalance, at least a little. It
examines three recent major state constitutional decisions dealing with the
right to arms, in particular municipal bans or controls on so-called "assault
weapons." In Oregon State Shooting Ass'n v. Multnomah County,[15] an
Oregon county had enacted a relatively mild restriction on "assault weapons";
although the law did not place extra restrictions on possession or acquisition,
it did ban the sale of "assault weapons" at a government facility which hosted
gun shows, and also required "assault weapons" to be unloaded when transported
in public.[16] When challenged in Oregon district court, the law was
upheld.[17] The Oregon Court of Appeals voted to affirm the lower court,
but was divided as to the rationale. The dissent would have upheld the law on
the grounds that relatively minor restrictions on a small class of unusually
dangerous firearms did not amount to an infringement of the right to arms.[18] The majority, however, went much further, holding that, under a historical test
developed by the Oregon Supreme Court,[19]
the Oregon constitutional right to arms did not even extend to the firearms in
question.[20] The Oregon Supreme Court denied review.

In Robertson v. City of Denver,[21]
the Colorado Supreme Court considered the constitutionality of a 1989 Denver
City Council ordinance that was much more restrictive and covered a wider
variety of firearms than did the ordinance at issue in Oregon.[22] Upon cross motions for summary judgment, the district court had declared the
ordinance invalid under the Colorado Constitution, although the court opined
that a much more narrowly drafted law would have been constitutional.[23] A 6-1 majority of the Colorado Supreme Court reversed and upheld the law.[24] The case has been remanded for trial on issues unrelated to this article.[25](p.1185)

Also in 1989, Cleveland enacted an ordinance[26]
that covered even more firearms than the Denver ban.[27]
Like the Denver law, the Cleveland law was a total ban on possession and sale,
with an exception made for current owners who registered with the city. The
majority of the Ohio Supreme Court held that the right to arms in Ohio was a
fundamental individual right,[28]
but the court affirmed the district court's grant of Cleveland's motion to
dismiss, reasoning that no set of facts could prove the ordinance, or any part
of it, unconstitutional.[29]
The dissenters would have remanded the case for trial, to test the truth of the
Cleveland ordinance's assertions that the banned guns were unusually dangerous
and frequently used for criminal purposes.[30](p.1186)

In each of the cases the state Attorney General became involved,
although in different ways. In Oregon, the Attorney General wrote an opinion
stating that the restrictions violated the Oregon Constitution, but he did not
participate further in the case.[31] In
Ohio, Attorney General Lee Fisher, a member of the Board of Directors of Handgun
Control, Inc., wrote amicus briefs in support of the Cleveland gun ban.[32] In Colorado, the Attorney General has the statutory right to intervene in all cases
challenging the constitutionality of an ordinance.[33]
After Denver was sued by private plaintiffs who thought the Denver gun ban
unconstitutional, Attorney General Duane Woodard exercised his right to
intervene, and joined the case on the side of the plaintiffs.[34]

In the three cases we will examine,[35]
the majority opinions did not take the right to arms seriously, at least not in
the sense of viewing the right as one entitled to judicial protection. Rather,
the majority opinions not only upheld the laws in question, but also disabled
the constitutional right itself. With the exception of a concurring opinion in
the Colorado case,[36] none of these rights-disabling opinions had the intellectual
honesty to acknowledge that the opinion's authors strongly disfavored the right
to arms and wanted to relegate it to a second-class constitutional status.
Rather, the opinions claimed to be nothing more than narrow technical legal
analyses, although the analyses were often conducted in an intellectually
dishonest manner.

Part I of this article sets forth the intellectual and historical background of
state constitutional litigation involving the right to arms, paying special
attention to different theoretical bases for determining which kinds of arms
should receive constitutional protection. The remainder of the article examines
issues which the different courts considered in interpreting their state
constitutions' right to arms. Part II looks at
history and original intent, with special reference to Oregon, where the Oregon
Supreme Court has created a historical intent test for interpreting the Oregon
Constitution's right to (p.1187) arms.[37]Part III examines
the issue of whether the right to arms is a fundamental right, a question that
was central to the Colorado decision.[38]Part IV analyzes the standard of review for arms right cases, a central issue in the Ohio decision.[39]Part V examines the
fact-finding engaged in by all three state courts, and part VI discusses
the constitutional legitimacy of armed self-defense. The conclusion places the
cases in their broader social context and explains how, paradoxically, legal
decisions which suggest that gun owners have no rights which a court is bound to
respect result in the political strengthening of the gun rights movement.

I. Historical Interpretations of State Constitutional Rights to Arms

A. The Underlying Theories

American courts have generally interpreted the
state constitutional arms guarantees according to two theories, which we call
"civic republicanism" and "classical liberalism." Both theories recognize an
individual's right to possess arms, but the right serves a different purpose
under each theory.[40] Under the civic republicanism theory, guarantees of the
right to keep and bear arms protect individual ownership of arms that would be
appropriate to restraining tyrannical government, but do not necessarily protect
a right to carry arms:(p.1188)

The section under consideration, in our bill of
rights, was adopted in reference to these historical facts, and in this point
of view its language is most appropriate and expressive. Its words are, "the
free white men of this state have a right to keep and bear arms for their
common defence." It, to be sure, asserts the right much more broadly than the
statute of 1 William & Mary.[41]
... But, with us, every free white man is of suitable condition, and,
therefore, every free white man may keep and bear arms. But to keep and bear
arms for what? If the history of the subject had left in doubt the object for
which the rights is secured, the words that are employed must completely
remove that doubt. It is declared that they may keep and bear arms for their
common defence .... The object, then, for which the right of keeping and
bearing arms is secured is the defence of the public. The free white men
may keep arms to protect the public liberty, to keep in awe those who are in
power, and to maintain the supremacy of the laws and the constitution.[42]

Under this theory, reflected in early court
interpretations of the Second Amendment, the right to keep and bear arms only
protects arms appropriate to military purposes:

What then, is he protected in the right to keep
and thus to use? Not every thing that may be useful for offense or defense,
but what may properly be included or understood under the title of "arms,"
taken in connection with the fact that the citizen is to keep them, as a
citizen. Such, then, as are found to make up the usual arms of the
citizen of the country, and the use of which will properly train and render
him efficient in defense of his own liberties, as well as of the State.
Under this head, with a knowledge of the habits of our people, and of the
arms in the use of which a soldier should be trained, we hold that the rifle,
of all descriptions, the shot gun, the musket and repeater, are such arms, and
that, under the Constitution, the right to keep such arms cannot be infringed
or forbidden by the legislature.[43]

Similarly, the West Virginia Supreme Court limited protection to only certain types of arms:

In regard to the kind of arms referred to in
the amendment, it must be held to refer to the weapons of warfare to be used
by the militia, such as swords, guns, rifles, and muskets--arms to be used in
defending the State and civil liberty--and not to pistols, bowie-knives, brass
knuckles, billies, and such other weapons as are usually employed in brawls,
street-fights, duels, and affrays, and are only habitually carried by bullies,
blackguards, and desperadoes, to the terror of the community and the injury of
the State.[44](p.1189)

Much of the case-law development of the civic
republicanism theory took place in the South after the Civil War. The former
slave states needed new mechanisms for keeping the newly freed slaves in their
"proper" place in the economic and social structure.[45] At
the same time, the state legislatures recognized that overtly racially
discriminatory laws would run afoul of the Civil Rights Act of 1866 or the
Fourteenth Amendment's guarantee of equal protection.[46]
While historians must infer the legislature's intent in enacting these laws (as
historians have done with respect to the contemporaneous vagrancy laws),[47]
there are occasional direct statements of purpose for these new, more
restrictive, gun control laws. For example:

The original Act of 1893 was passed when there
was a great influx of negro laborers in this State drawn here for the purpose
of working in turpentine and lumber camps. ... The statute was never intended
to be applied to the white population and in practice has never been so
applied.[48]

The civic republicanism theory provided a way to
justify bans or restrictive regulation of concealable handguns, Bowie knives,
and a variety of other defensive weapons that were not military arms.

The classical liberalism theory of the right to keep and bear arms
protected any arms that could be used for self-defense. The theory has protected
not only the right to possess arms at home, but has also struck down many
statutes prohibiting the carrying of arms--as we will see when we examine the
Oregon decisions of the 1980s.[49]
The earliest of these decisions comes from the Kentucky Supreme Court, striking
down a prohibition on the carrying of concealed weapons:

And can there be entertained a reasonable
doubt but the provisions of the act import a restraint on the right of the
citizens to bear arms? The court apprehends not. The right existed at the
adoption of the constitution; it had then no limits short of the moral power
of (p.1190) the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to
bear arms .... For, in principle, there is no difference between a law
prohibiting the wearing [of] concealed arms, and a law forbidding the wearing
such as are exposed; and if the former be unconstitutional, the latter must be
so likewise.[50]

In a more recent decision, the Idaho Supreme
Court followed in the classical liberal tradition with respect to the Second
Amendment when it interpreted the Idaho Constitution's similar provision:[51]

The second amendment to the federal
constitution is in the following language: "A well-regulated militia, being
necessary to the security of a free state, the right of the people to keep and
bear arms shall not be infringed." Section 11, article 1, of the Idaho
Constitution reads: "The people have the right to bear arms for their security
and defense, but the legislature shall regulate the exercise of this right by
law." Under these constitutional provisions, the legislature has no power to
prohibit a citizen from bearing arms in any portion of the state of Idaho,
whether within or without the corporate limits of cities, towns, and villages.
The legislature may, as expressly provided in our state constitution, regulate
the exercise of this right, but may not prohibit it. A statute prohibiting the
carrying of concealed deadly weapons would be a proper exercise of the police
power of the state. But the statute in question does not prohibit the carrying
of weapons concealed, which is of itself a pernicious practice, but prohibits
the carrying of them in any manner in cities, towns, and villages. We are
compelled to hold this statute void.[52]

The two theories, civic republicanism and
classical liberalism, are not necessarily two discrete boxes, with state cases
falling neatly into one or the other. One reason for the doctrinal overlap is
that the federal Second Amendment implicitly contains both theories, with civic
republicanism in the subordinate clause ("a well-regulated militia"), and
classical liberalism in the main clause ("the right of the people").[53]
Thus, it should not be surprising that decisions would often use both theories.
In Cockrum v. State,[54]
the Texas Supreme Court explained why both the Second Amendment and the similar
guarantee of the Texas Constitution[55]
limited the authority of the state government to regulate the carrying of
arms:

The object of the first clause [of the Second
Amendment] cited, has reference to the perpetuation of free government, and is
based on (p.1191) the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The
clause cited in [the Texas] bill of rights, has the same broad object in
relation to the government, and in addition thereto, secures a personal right
to the citizen. The right of a citizen to bear arms, in the lawful defence of
himself or the State, is absolute. He does not derive it from the state
government, but directly from the sovereign convention of the people that
framed the state government. It is one of the "high powers" delegated directly
to the citizen, and "is excepted out of the general powers of government." A
law cannot be passed to infringe upon or impair it, because it is above the
law, and independent of the law-making power.[56]

Likewise, a 1900 Ohio Supreme Court decision
explained the Ohio right in terms of both political liberty and personal
defense.[57]

B. What Arms Are Protected?

As Part II will discuss, the Oregon courts are the only state courts in recent decades to have
developed a substantial body of case law regarding what types of weapons are the
"arms" which the state constitution guarantees the right to possess and carry.
The few other state court decisions on the subject suggest that a ban on
semi-automatic firearms might be constitutionally problematic.[58] In some cases, courts offered the conclusion that a particular firearm was
protected without great theoretical elaboration. For example, in a 1984 case,[59] the Washington Supreme court determined that a murderer's ownership of a Colt
CAR-15 semiautomatic rifle (an "assault weapon" under current formulations)
could not be used as a death penalty enhancement because to do so would
unnecessarily "chill" or penalize the assertion of the constitutional right to
bear arms.[60] The court found that the defendant's right to bear arms was
directly implicated, and to hold otherwise would violate the Washington
Constitution's mandate that "the right of the (p.1192) individual citizen to bear arms in defense of himself,
or the state, shall not be impaired ...."[61]
With similarly spare analysis, the Missouri Court of Appeals found "pistols and
ammunition clips" to be protected because "every citizen has the right to keep
and bear arms in defense of his home, person and property."[62]

A historical decision in a West Virginia case explained that a
previous version of the state constitution had protected militia-type weapons,
because "arms" included "the weapons of warfare to be used by the militia, such
as swords, guns, rifles, and muskets--arms to be used in defending the State and
civil liberty ...."[63] This militia-weapons test, commonly known as the "civilized
warfare" test,[64] appears to have been adopted by the United States Supreme
Court in the 1939 decision United States v. Miller.[65]Miller allowed an individual who was not a National Guard member to raise
a right to bear arms claim, but held that only arms which were suitable for use
in a militia were protected by the Second Amendment.[66]

In contrast, a Florida case found semiautomatic firearms to be
protected, but not by inquiring into their suitability for militia use.[67] Instead, the court based its holding on a determination that such firearms were
commonly used for protection by law-abiding people (a classical liberal formulation).

We, therefore, hold that the statute does not prohibit the ownership, custody and possession of weapons not concealed upon
the person, which, although designed to shoot more than one shot
semi-automatically, are commonly kept and used by law-abiding people for
hunting purposes or for the protection of their persons and property, such as
semi-automatic shotguns, semiautomatic pistols and rifles.[68]

A North Carolina decision[69]
pointedly rejected the "civilized warfare" test (an implementation of the civic
republicanism theory), even while affirming civic republicanism as the
theoretical foundation of the right to arms: (p.1193)

To him [the ordinary private citizen] the
rifle, the musket, the shotgun, and the pistol are about the only arms which
he could be expected to "bear," and his right to do this is that which is
guaranteed by the Constitution. To deprive him of bearing any of these arms is
to infringe upon the right guaranteed to him by the Constitution.

It would be mockery to say that the
Constitution intended to guarantee him the right to practice dropping bombs
from a flying machine, to operate a cannon throwing missiles perhaps for a
hundred miles or more, or to practice in the use of deadly gases .... The
intention was to embrace the "arms," an acquaintance with whose use was
necessary for their protection against the usurpation of illegal power--such
as rifles, muskets, shotguns, swords, and pistols.[70]

With this historical case law background in mind, let us now turn to Oregon, where the courts have gone far beyond their
twentieth-century peers in developing and applying historical tests which use
both the civic republican and the classical liberal theories.

II. Historical Tests and the Right to Arms

A. Oregon Case Law in the 1980s

In the 1980s, the Oregon courts repeatedly struck
down laws regulating the possession and carrying of a variety of weapons based
on Article I, Section 27 of the Oregon Constitution, which provides that "the
people shall have the right to bear arms for the defence of themselves, and the
State."[71] The courts did so by developing a jurisprudence which looked
at the historical evolution of weapons technology.

The first case was the 1980 decision State v. Kessler,[72] in which the Oregon Supreme Court declared void an Oregon statute[73]
that prohibited "possession of a slugging weapon"--in this case, a billy
club--in the defendant's home.[74]
The court traced the ancestry of article I, section 27 back to the Indiana
Constitution of 1816,[75]
and from there to the state constitutions of Kentucky (1799)[76]
and Ohio (1802),[77] thence backward through the Second Amendment and ultimately
to the 1689 English Bill of Rights.[78]
The court (p.1194)also cited the Michigan case
of People v. Brown[79]
for the proposition that concern about the dangers of standing armies was a
major motivation behind the right to keep and bear arms, but that the right also
reflected a personal self-defense requirement.[80]

The dispute about which arms are protected represents one
of the significant differences between the classical liberalism and civic
republicanism theories. For this reason, the court discussed which arms the
Oregon Constitution protects, and concluded that

The term "arms" as used by the drafters of the
constitutions probably was intended to include those weapons used by settlers
for both personal and military defense. The term "arms" was not limited to
firearms, but included several handcarried weapons commonly used for defense.
The term "arms" would not have included cannon or other heavy ordnance not
kept by militiamen or private citizens.[81]

Up to this point, the Oregon Supreme Court fell
squarely in the classical liberal and civic republicanism traditions of judicial
interpretation of the right to keep and bear arms. The court then drew a line
between constitutionally protected arms and unprotected weapons:

The development of powerful explosives in the
mid-nineteenth century, combined with the development of mass-produced metal
parts, made possible the automatic weapons, explosives, and chemicals of
modern warfare .... These advanced weapons of modern warfare have never been
intended for personal possession and protection. When the constitutional
drafters referred to an individual's "right to bear arms," the arms used by
the militia and for personal protection were basically the same weapons.
Modern weapons used exclusively by the military are not "arms" which are
commonly possessed by individuals for defense, therefore, the term "arms" in
the constitution does not include such weapons.[82]

Because the Oregon Constitution's provision included "defense of themselves,"[83] the court concluded that defensive arms, even though "unlikely to be used as a
militia weapon," would include any weapon commonly used for personal defense.[84]
However, the court also clearly stated that "automatic weapons" and "modern
weapons used exclusively by the military are not 'arms'" protected by the Oregon
Constitution.[85] (p.1195)

We do not wish to criticize the Kessler decision for not
taking the right to arms seriously. Kessler is a careful decision that
works hard to protect the rights of people who wish to own firearms, while
drawing a workable test that clearly excludes modern military weapons from
ordinary civilian possession. However, as a historical matter, the court may
have been wrong to imply that the drafters of the 1859 Constitution could not
imagine the automatic weapons developed as a result of the mid-nineteenth
century's industrial advances.[86] In
fact, the mid-century technological advances did not lead to unanticipated
developments in small arms. Instead, this era perfected concepts that were
already well-known or under development. As early as 1663, Palmer presented a
paper to the Royal Society describing the operating principle of the modern
gas-operated semiautomatic firearm. Similarly, James Puckle's "A Portable Gun or
Machine called a Defence," patented in May 1718, bears many similarities to the
Gatling gun, the first of the practical machine guns.[87]
The Puckle gun was ridiculed at the time as an impractical design, and called a
scheme for separating investors from their money. But it demonstrates that the
concept of machine guns existed, even if the metal working technology
of the day was not capable of making the weapon.[88]

The court also erred in asserting that "advanced weapons of modern
warfare" such as "automatic weapons," "have never been intended for personal
possession and protection."[89]
Machine guns were originally designed for military purposes.
Nevertheless, from the beginning they had a civilian market: "As early as 1863
H. J. Raymond, the owner of the New York Times, had bought three Gatling
guns to protect his offices against feared attacks by mobs of people protesting
against the Conscription Act of March of that year, of which the Times
had come out in support."[90]

Company goon squads used machine guns in suppressing strikes
throughout the period between the Civil War and the 1930s--a disreputable use,
but lawful under the laws of the day. The Thompson submachine gun provides the
best example of the complex relationship between private and public ownership.
Since the anticipated government contracts did not materialize, the "Tommy" guns
were successfully marketed to private citizens for self-defense--especially in
New York City, where the Sullivan Law had made it difficult to legally buy
handguns.[91] Even today, private ownership of automatic (p.1196) weapons in the United States, while heavily regulated
and highly taxed,[92] remains legal in most states.

The year after the Kessler decision, the Oregon Supreme
Court decided in State v. Blocker that while the state legislature could
prohibit the carrying of a concealed billy club, the statute in question[93]
had prohibited possession of a billy club anywhere--and had made no distinction
between concealed carry and open carry.[94]
The court did acknowledge that some types of regulation of the bearing of arms
were constitutional, but:

On the other hand, ORS 166.510, with which we
are here concerned, is not, nor is it apparently intended to be, a restriction
on the manner of possession or use of certain weapons. The statute is written
as a total proscription of the mere possession of certain weapons, and that
mere possession, insofar as a billy is concerned, is constitutionally
protected.[95]

The legislature could prohibit carrying arms
with criminal intent; it could prohibit carrying concealed arms; but unless some
form of carry was protected, the statute would violate the constitutional
protection of the right to bear arms for self-defense.[96]

In State v. Delgado, the Oregon Supreme Court faced a
precursor to the "assault weapon" issue, a case involving switchblade knives.[97]
The Kessler decision had recognized that "hand-carried weapons commonly
used by individuals for personal defense" were constitutionally protected.[98] In
Delgado, the state argued that switchblades were not commonly used for
defense, and therefore fell outside the protection of the Oregon Constitution.[99]

The Oregon Supreme Court rejected the prosecution's evidence that
switchblade knives are "almost exclusively the weapon of the thug and
delinquent,"[100] calling the material "no more than impressionistic
observations on (p.1197) the criminal use of switch-blades."[101] The court also dismissed the distinction between
"offensive" and "defensive" arms:

More importantly, however, we are unpersuaded
by the distinction which the state urges of "offensive" and "defensive"
weapons. All hand-held weapons necessarily share both characteristics. A
kitchen knife can as easily be raised in attack as in defense. The spring
mechanism does not, instantly and irrevocably, convert the jackknife into an
"offensive" weapon. Similarly, the clasp feature of the common jackknife does
not mean that it is incapable of aggressive and violent purposes. It is not
the design of the knife but the use to which it is put that determines its
"offensive" or "defensive" character.[102]

The court then elaborated on the historical test
that had first been announced in Kessler:

The appropriate inquiry in this case at bar is
whether a kind of weapon, as modified by its modern design and function, is of
the sort commonly used by individuals for personal defense during either the
revolutionary and post-revolutionary era, or in 1859 when Oregon's
constitution was adopted. In particular, it must be determined whether the
drafters would have intended the word "arms" to include the switch-blade knife
as a weapon commonly used by individuals for self defense.[103]

After a setting forth a history of pocket
knives, fighting knives, sword-canes, and Bowie knives, the court found that the
switch-blade knife was of the same "sort" as the knives in common use in
1859:

We are unconvinced by the state's argument
that the switch-blade is so "substantially different from its historical
antecedent" (the jackknife) that it could not have been within the
contemplation of the constitutional drafters. They must have been aware that
technological changes were occurring in weaponry as in tools generally. The
format and efficiency of weaponry was proceeding apace. This was the period of
development of the Gatling gun, breach loading rifles, metallic cartridges and
repeating rifles. The addition of a spring to open the blade of a jackknife is
hardly a more astonishing innovation than those just mentioned ....[104]

By acknowledging that "repeating rifles" were under development when Oregon adopted its 1859 Constitution, the court strongly
implied that repeating rifles were constitutionally protected, a point which
will be important when we examine the "assault weapon" decision. (p.1198)

While the Oregon Court of Appeals had been reversed in Kessler[105] and Delgado,[106]
subsequent decisions of the intermediate court appeared to fall in line with the
state supreme court's approach. In Barnett v. State, the court of appeals
recognized the blackjack as an "arm" protected under the Oregon Constitution.[107]
In State v. Smoot, the court of appeals upheld a conviction for concealed
carry of a switchblade knife, since the statute in question restricted only the
manner of carrying this constitutionally protected arm.[108]
The court observed that "[a] person may possess and carry a switchblade as long
as it is not concealed."[109]

Each of the Oregon decisions involved a weapon that has an
unsavory image: a billy club, a switch-blade knife, and a blackjack. Yet the
Oregon courts recognized that while these weapons were sometimes used by
criminals, they could also be used for lawful defense. The next decision,
however, showed that the Oregon Court of Appeals found certain weapons more
unsavory than a switch-blade knife.

B. Oregon's Historical Test Applied to Semiautomatics

In 1990, Multnomah County (where Portland is
located) passed Ordinance 646, a mild "assault weapon" regulatory law.[110]
It prohibited possession for sale at the Exposition Center, a public facility
where gun shows were often held. It also required "assault weapons" in a public
place "to be unloaded, locked in a gun case and, if in a vehicle, placed in an
inaccessible portion of the vehicle when being transported."[111]Oregon State Shooting Ass'n v. Multnomah County was filed seeking
declaratory judgment against the county ordinance, as well as against a city
ordinance charging a fee for background checks on gun purchasers.[112]
Much of the decision relates to the question of whether state firearms laws
preempted local regulation, and is uninteresting from the standpoint of what
arms are constitutionally protected.[113]

The Oregon Supreme Court's Kessler decision acknowledged
both the classical liberalism theory ("weapons used by settlers for ... personal
... (p.1199) defense") and civic republicanism theory ("military defense")[114]
of the right to keep and bear arms. Kessler protects both militia weapons
and personal defense weapons. The later decisions (Blocker,
Delgado, Barnett, and Smoot) involved weapons that were not
military weapons, and consequently those cases did not discuss the civic
republicanism theory. Yet the Oregon Court of Appeals, in deciding Oregon
State Shooting Ass'n, ignored the civic republicanism theory of the right to
keep and bear arms. Kessler does not protect modern weapons of warfare,
defined as "automatic weapons" and those "used exclusively by the military;"
however, it does protect the sort of weapons used for militia purposes in
1859.[115] Ignoring the Kessler decision's test for which
kinds of military arms were protected, the Oregon State Shooting Ass'n
court looked exclusively to Delgado's test.[116]
But of course Delgado had involved only the "personal protection" prong
of Kessler, since Kessler's militia prong plainly did not protect
switchblade knives, the weapon at issue. The court of appeals might as well have
cited a decision stating that both commercial speech and political speech were
protected, and then applied only a test for commercial speech from a later case.

In Oregon State Shooting Ass'n, the court found that, under
the Delgado personal defense test, a weapon must satisfy three criteria:
(1) although the weapon may subsequently have been modified, it must be "of the
sort" in existence in the mid-nineteenth century; (2) the weapon must have been
in common use; and (3) it must have been used for personal defense.[117]
Let us now examine each of those criteria, as applied to semiautomatic firearms
by the court of appeals.

1. "Of the sort"

The first of these criteria is nebulous, as the
majority on the court of appeals observed.[118]
The court of appeals held that the banned semiautomatic weapons were not of the
same "form" as mid-nineteenth century weapons.[119]
The court based its holding on an incorrect statement of fact, and a statement
of "fact" that was merely an opinion. The incorrect statement of fact was that
"the technology for automatic weapons did not exist until the twentieth century
...."[120] The opinion masquerading as fact was "the technology by
which automatic weapons operate precludes a finding that a semiautomatic weapon
is a 'counterpart' of a mid-nineteenth century repeating rifle."[121]

The court of appeals was simply wrong concerning the
twentieth-century birth of automatic weapons. If we define "automatic firearm"
in its narrowest (p.1200) sense, an "automatic"
is a firearm in which, as long as the trigger is depressed, will reload and fire
more rounds until the magazine (which contains the ammunition) is exhausted. The
shooter does not need to press the trigger over and over. Rather, he need
squeeze it only once, and until he releases, bullets will be loaded and fired
automatically. Hiram Maxim demonstrated the first successful automatic weapon in
1884.[122]

More importantly, weapons of the same "sort"--as measured by
their ability to fire bullets rapidly--were in use or under development at the
time Oregon adopted its 1859 Constitution. While functional automatic weapons
were not invented until 1884, functional machine guns had come decades earlier.
Although the terms "machine gun" and "automatic" are sometimes used
interchangeably, they are not identical. An automatic gun is a subset of machine
guns. A "machine gun" is a firearm in which rounds are loaded and fired by the
operation of machinery--even if human action is required to operate the machine.

As noted above, prototypes of machine guns were centuries old,
although mass production of such weapons had proved to be beyond the skills of
the time.[123] The practical machine gun era began in France in 1851,
with the production of the Montigny Mitrailleuse, a multibarreled battery gun
that fired several hundred rounds a minute. Its commercial production
demonstrates that machine guns were not only a recognized concept, but operable
devices when the Oregon Constitution was adopted. A major advance in machine gun
technology came in 1861, when the Union Army bought small quantities of the Ager
Gun, a crank-operated machine gun. Unlike most previous machine-gun models,
which had needed as many barrels as there were rounds to fire, the Ager fired
all of its rounds through a single barrel. The gun, also known as the Ager
Coffee Mill, enjoyed only limited success, because the barrel would overheat.[124]
But in 1862, Richard Gatling received patents for his "Gatling gun." The Gatling
gun used six rotating barrels, thereby allowing very rapid fire while keeping
the barrels from overheating. In contrast to the automatic weapons developed two
decades later, the Gatling gun did not use the energy from the gun-powder
explosion to perform the work of reloading and firing the gun. Instead, the
Gatling gun was powered by a hand crank. Thus, the Gatling gun was not an
automatic firearm, but it was a machine gun.[125]
Gatling guns were used in small quantities during the Civil War, and sold
heavily overseas in the 1860s and 1870s.

The court of appeals was therefore plainly wrong in its factual
assertion about the development of firearms. If the case before the court of
appeals had involved automatic weapons, the error would have been harmless,
since Kessler had already stated that automatic weapons did not fall
within the (p.1201) scope of the right to arms.
If the question before the court of appeals was whether to regulate automatic
weapons, based on the Kessler decision, the error about when automatic
weapons were developed would be relatively minor, since Kessler stated
that automatic weapons were not protected. The problem came when the court of
appeals attempted to reason backward from the fact that automatics are not
protected to prove that semiautomatics are not protected.

First, the court of appeals reiterated the trial court's claims
that the named "assault weapons" "can be readily converted back into the fully
automatic military configuration."[126]
This factual finding was plainly incorrect, since federal law already regulates
as an automatic any firearm which can be "readily converted" to automatic. As
the United States Code states:

The term "machine-gun" means any weapon which
shoots, is designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by a single
function of the trigger. The term shall also include the frame or
receiver of any such weapon, any part designed and intended solely and
exclusively, or combination of parts ... from which a machine-gun can be
assembled if such parts are in the possession or under the control of a
person.[127]

In other words, by long-standing federal law,
if a gun can be readily converted into an automatic, it is an
automatic. In 1982, the Bureau of Alcohol, Tobacco and Firearms ("BATF") used
the above-quoted statute to classify as an automatic a readily-convertible
semi-automatic.[128] The gun in question was the open-bolt MAC-10, which could
be converted to automatic by simply inserting a paper clip in a particular
place. The BATF ruled that any subsequently-manufactured MAC-10 would be
classified as a machine gun. Out of deference to the reliance interests of
consumers, the BATF did not retroactively classify already-sold open-bolt
MAC-10s as machine guns. After the BATF ruling, the MAC-10 manufacturer
abandoned the open-bolt design, and began producing other guns which were,
according to the BATF's analysis, not readily convertible to automatic.

The BATF decision would have been a solid basis for the court of
appeals to find that the Oregon right to arms does not protect pre-1982 MAC-10s.
But instead, the court of appeals used the BATF ruling about the MAC-10 to
assert that all guns affected by the ordinance were readily
convertible.[129] This reasoning is implausible. If an agency has the job of
separating the sheep from the goats, examines an entire herd of animals, and
removes only a single sheep, the agency's action is evidence that the other
animals are not sheep.(p.1202)

In State v. Delgado, the Oregon Supreme Court implied, in
passing, that the Oregon Constitution protected nineteenth-century repeating
rifles and their twentieth-century counterparts.[130]
Thus, if semiautomatic firearms were counterparts of nineteenth-century
repeating rifles, they would be protected by the right to arms. The court of
appeals held that a semiautomatic weapon could not be "a 'counterpart' of a
mid-nineteenth century repeating rifle"[131]
because the operating mechanism for automatic and semiautomatic weapons did not
exist in 1859.

To determine the meaning of "counterpart," the court of appeals
stated that "counterpart" meant "to seem like a duplicate."[132]
For something to be a duplicate would mean that the Constitution
protected only exact replicas of 1859 firearms. "To seem like a duplicate"
implies only firearms which could fool consumers into believing that the guns
were 1859 replicas would be protected. If that is what the court of appeals
meant, the court was rejecting the controlling rule of the state supreme court,
which has already found that weapons (like switchblade knives) which are neither
duplicates nor seem like duplicates of 1859 weapons are constitutionally
protected.

Reading the court of appeal's "seems like a duplicate" language
more generously, the court might be saying, "if it quacks like a duck and tastes
like a duck, it should be treated as a duck. Even if it is a goose." If so, the
court of appeals would have been stating some kind of functionality test: if a
gun functions the same as an 1859 gun, then it would be protected.

Functionally, a semiautomatic rifle is not so different from the
Volcanic (later Henry) rifle that was under development just before and after
adoption of the 1859 Oregon Constitution. Patents were issued in 1849 for the
predecessor to the Volcanic rifle, which in turn, achieved massive commercial
success as the Henry, introduced in 1861.[133]
Like a semiautomatic rifle, the Henry could be loaded and fired repeatedly,
without reloading. Like a semiautomatic and every other common gun (and unlike
an automatic or a machine gun), the Henry fired only one round per trigger
press. To fire another round, the shooter would have to press the trigger again.
One of the most comprehensive histories of repeating firearms clearly recognized
the lineal relationship between the guns like the Henry and modern rifles:
"These were the beginning of the long line of military repeating shoulder arms
that has stretched toward us through the box magazine, bolt action, clip
loading, and finally the automatic types of the present day ...."[134]
Around 1860, the centuries-long prototype period of rapid-fire weapons was
giving way to a period of mass production and refinement.[135]

The court of appeals opined that the 1859 Constitutional
Convention would have found it "astonishing" that some of the "assault weapons"
were (p.1203)capable of firing "20 rounds of
ammunition [with] an effective range of 440 to 600 yards."[136]
If so, the Convention's members had that opportunity for astonishment within two
years after Oregon adopted the 1859 Constitution. Henry rifle advertising
claimed that the rifle could fire sixty shots a minute.[137]
The company boasted not only of the rifle's firepower, but of its ability to
penetrate wood, and to kill at long ranges: "The penetration at 100 yards is 8
inches; at 400 yards 5 inches; and it carries with force sufficient to kill at
1,000 yards. A resolute man, armed with one of these Rifles, particularly if on
horseback, CANNOT BE CAPTURED."[138]
Even accounting for the exaggerations of advertising, the capabilities of the
Henry rifle are similar to those of modern "assault weapons," and thus an
accurate analysis of history suggests that modern semiautomatics may be a
counterpart of the Henry rifle.

One ostensible difference between the banned "assault weapons"
and weapons under development in the 1850s is the detachable magazine. Many of
the weapons covered by the Multnomah County ordinance use detachable magazines,
allowing rapid reloading. Although there were no detachable magazine firearms in
the 1850s, the Colt revolver's cylinder was removable, allowing for relatively
rapid reloading.[139] While not as fast as a modern detachable magazine weapon,
the Colt revolver demonstrates that the functionality of repeating, rapidly
reloadable firearms was known in 1859. Thus, one may argue that modern magazines
are merely a refinement of the rapid reloading technology of the revolver. In
any case, neither the Portland law nor the court of appeals referred to the
detachable magazine as the distinction dividing "assault weapons" from those not
regulated.[140]

2. Common Use

The second test listed by the court of appeals
concerns "common use."[141]
The Colt revolver was in common use throughout the West by the time Oregon
adopted its 1859 Constitution. The Colt revolver combined two of the functions,
repeating and rapid reloading, that are common to the weapons regulated by the
Multnomah ordinance. The technological advantage of the Colt revolver over
existing weapons was dramatic; one might even argue that they were the "assault
weapons" of their time: (p.1204)

Unheard-of fire power was delivered by the
new arms .... In fact, it is probable that since the late 1850's there has
never been ... such a disparity in fire power between any two armed forces as
there was between the groups armed with the Colt revolver and their opponents
armed in the prevailing way of the time.[142]

No serious person could argue that the Colt
revolvers were not commonly used. Instead, the court of appeals ignored the
Colt's place in history, and focused on the Volcanic rifle.[143]
The Volcanic was the direct predecessor of the Henry, which became a major
commercial success in 1861. The court of appeals insisted that because the
Volcanic itself was not commercially successful, there were no counterparts to
"assault weapons" in "common use" in Oregon in 1859.[144]

3. Personal Defense

Finally, the third criterion used by the court
of appeals in applying Delgado's three-part test was whether the weapon
was used for personal defense.[145]

The Kessler decision made this distinction between
"advanced weapons of modern warfare" and the weapons of personal self-defense.[146]
In Kessler, the Oregon Supreme Court made it clear that weapons "used
exclusively by the military" are not "arms" protected by the Oregon
Constitution.[147] But what weapons are "used exclusively by the military"?
The fact that Multnomah County found it necessary to regulate "assault weapons"
suggests that there were a significant number of non-military owners of such
weapons. Indeed, none of the semiautomatic firearms regulated by Multnomah
County is used by any military force anywhere in the world, because the firearms
are semiautomatic, and modern militaries use automatics. Semiautomatic firearms,
which constitute about half of the current supply of handguns and a large
fraction of the supply of rifles and shotguns, are frequently used for
self-defense.[148]

C. Colorado History

In contrast to the Oregon cases, right to arms
jurisprudence in Colorado has never looked to conditions surrounding the
creation of the state constitution. Nor have the courts stated that evidence of
original intent is irrelevant. The Colorado Statehood Constitution of 1876
included the arms guarantee as it still exists today.[149]
The record of the constitutional convention includes (p.1205) votes on motions and amendments, but little reporting
of debates (other than a debate over government assistance to parochial
schools).[150] The only change made by the state convention to the
original proposal was that the original proposal would have restricted the
guarantee to "citizens," but the constitution broadened it to include every
"person."[151] As in other Rocky Mountain states, the right to arms was
considered fundamental and non-controversial:

The agreed-upon axioms of fundamental rights as
guaranteed in the Constitution and the territorial organic acts stimulated
little debate. The conventions accepted the free exercise of religion, speech,
assembly, press, and petition. Delegates generally included the right to keep
and bear arms although the militia often received a separate article .... A
liberal construction and a complete enumeration of rights were prevalent
features of the Rocky Mountain bills of rights.[152]

The Colorado arms guarantee was taken from the
Missouri Constitution of 1875.[153]
The chairman of the Bill of Rights committee explained in the Missouri
constitutional convention:

This provision goes on and declares, that the
right of every citizen to bear arms in support of his house, his person, and
his property, when these are unlawfully threatened, shall never be questioned,
and that he shall also have the right to bear arms when he is summoned legally
or under authority of law to aid the civil processes or to defend the State.[154]

Moreover, the framers of the Missouri Constitution felt that the state legislature would need authorization to
regulate the carrying of concealed weapons, since a Kentucky state court had
held that "a provision in the Constitution declaring that the right of any
citizen to bear arms shall not be questioned, prohibited the Legislature from
preventing the wearing of concealed weapons."[155]
Since explicit authorization was necessary to regulate the bearing of concealed
weapons, obviously no legislative power existed to prohibit the keeping
of arms. As to the scope of protected arms, a Missouri delegate explained the
federal Second Amendment in part as a right to own and carry militia arms: (p.1206)

How is this to be construed? Simply a right of the citizen of a state to carry a pistol, sabre or musket? ... The right
belongs to every state, not only that its citizens shall always be free to own
arms & to carry arms, but also to put those citizens thus armed &
equipped in an organization called militia.[156]

As the Colorado Supreme Court had noted in 1989, "The framers looked to other states as models for almost all of our
constitutional provisions."[157]
By 1876, the courts of several states had held that the right to keep arms
protected possession of militia-type firearms.[158]
Hornbook law in 1876 was set forth by Pomeroy's An Introduction to the
Constitutional Law of the United States:

It may be remarked that whatever construction
is given to these clauses, [the federal Bill of Rights] will also apply to the
same or similar provisions in the state constitutions.

1. The right of the people to keep and bear
arms. The object of this clause is to secure a well-armed militia .... But a
militia would be useless unless the citizens were enabled to exercise
themselves in the use of warlike weapons. To preserve this privilege, and to
secure to the people the ability to oppose themselves in military force
against the usurpations of government, as well as against enemies from
without, that government is forbidden by any law or proceeding to invade or
destroy the right to keep and bear arms.[159]

The Colorado framers and the people in 1876 were
familiar with the latest repeating firearms and the continuing technological
revolution in arms. For instance, the book Draft of a Constitution Published
under the Direction of a Committee of Citizens of Colorado included an
advertisement on its last page for the sale of "all kinds of latest improved
breech loading guns, rifles, pistols, Colts and Smith & Wesson's revolvers,
Sharp's, Wesson's, Winchester and Remington rifles ...."[160]
The Volcanic Rifle, marketed as early as 1856, held twenty-five to thirty
rounds. The Winchester Model 1866 (a successor to the Henry) was advertised in
1867 as firing "at a rate of one hundred and (p.1207) twenty shots per minute," and was recommended both for
Army use and "for a home or sporting arm."[161]

Thus, the issue that was at least arguably a close call with
regard to the Oregon Constitution of 1859 was well-settled by the time of the
Colorado Constitution of 1876. Rapid fire, powerful firearms, suitable for both
military and civilian use, were ubiquitous, and were commonly sold to civilians.
Since the framers of the Colorado Constitution thought it necessary to grant
specific authorization for regulation of concealed carry, it is implausible that
the framers contemplated a legislative body having the authority to ban the type
of rapid-fire military/civilian rifles which were common at the time the constitution was written.

Further evidence about original intent is supplied by the most
important jurist in early Colorado law--E.T. Wells--a highly respected justice
of the territorial and the state supreme court, a delegate to the constitutional
convention, author of the leading nineteenth-century treatise on Colorado law,
and a president of the Colorado Bar Association. In the Colorado State Supreme
Court Library is a book owned by Wells titled The Constitution of the State
of Colorado Adopted in Convention, March 14, 1876; Also the Address of the
Convention to the People of Colorado.[162]
Handwritten notes on the constitution appear on bluelined note paper before the
text begins. Item 68 is: "The provision that the right to bear arms shall be
[not called?] in question refers only to military arms: not dirks, bowie knives,
etc." Along with this, Justice Wells cited a case from Texas, English v.
State.[163]English v. State held that the Texas Constitution
"protects only the right to 'keep' such 'arms' as are used for purposes of
war."[164] In addition to this civic republicanism standard, the
English court stated:

The word "arms" in the connection we find it in the constitution of the United States, refers to the arms of a militiaman
or soldier, and the word is used in its military sense. The arms of the (p.1208) infantry soldier are the musket and
bayonet; of cavalry and dragoons, the sabre, holster pistols and carbine ....[165]

All of this history makes it hard to believe that, under the original intent of the Colorado Constitution, semiautomatic
firearms can be outlawed simply by dubbing them "military" and "rapid-fire."
Obviously a demonstration could have been proffered (which may or may not have
been factually persuasive) that modern semiautomatics are actually so much more
powerful than the Henry's and Winchester-type rifles of the 1870s that the
modern guns could not be within the contemplation of the framers. No such
demonstration was attempted. While the U.S. Supreme Court has stated that proof
that the framers of the Constitution would have found a particular law offensive
will suffice to declare the law unconstitutional,[166]
other courts have not been so deferential to original intent. For example, a
court may view original intent as only one factor among several to be
considered. Or a court may simply declare that it does not care what the
original intent of the Constitution was. The Colorado Supreme Court, when faced
with overwhelming, uncontested evidence of original intent, could have done the
same thing. But the court did not do so. Instead, it simply ignored the entire
issue of original intent as if it had never been raised.[167]

D. Evolving Technology

The Oregon Court of Appeals, in suggesting that the state constitution protects only guns which "seem like duplicates" of 1859
guns, seemed to reject the idea that constitutional rights evolve along with the
technology to exercise them.

It is true that the authors of the Second Amendment and of the
Colorado, Ohio, and Oregon constitutions never specifically intended to protect
the right to own semi-automatics (since such guns did not exist), just as they
never intended to protect the right to talk privately on a telephone or to
broadcast news on a television (since telephones and televisions did not exist
either). To assert that constitutional protections only extend to the technology
in existence in 1791 (or 1859) would be to claim that the First Amendment only
protects the right to write with quill pens and not with computers, and that the
Fourth Amendment only protects the right to freedom from unreasonable searches
in log cabins and not in homes made from high-tech synthetics. Does "freedom of
the press" in the Constitution's First Amendment, and its state counterparts,
apply only to printing presses "of the sort" in use in 1789? Are printing
technologies that rely on lead type protected, while xerographic processes are
not? Is a pamphlet distributed on floppy diskette or through electronic mail
unprotected? Should the Supreme Court (p.1209) hold that presses capable of printing thousands of pages of libels per hour are not protected?

The Constitution does not protect particular physical objects, such
as quill pens, muskets, or log cabins. Instead, the Constitution defines a
relationship between individuals and the government that applies to every new
technology. For example, in United States v. Katz,[168]
the Court applied the privacy principle underlying the Fourth Amendment to
prohibit warrantless eavesdropping on telephone calls made from a public phone
booth--even though telephones had not been invented at the time of the Fourth
Amendment.[169] Likewise, the principle underlying freedom of the
press--that an unfettered press is an important check on secretive and abusive
governments--remains the same whether a publisher uses a Franklin press to
produce a hundred copies of a pamphlet, or laser printers to produce a hundred thousand.

In 1791, it was easy to start a newspaper. But today, starting a
major paper requires large financial resources. The changed conditions provided
a reason to uphold a law guaranteeing a right of reply to persons who were
attacked in a newspaper. But the Supreme Court had no trouble rejecting changed
conditions as a reason for retreating from the historical understanding of the
First Amendment.[170]

It is true that an individual who misuses a semiautomatic today can
shoot more people than could an individual misusing a musket 200 years ago.[171]
Yet if greater harm were sufficient cause to invalidate a right, there would be
little left to the Bill of Rights. Since the Constitution was adopted, virtually
all of the harms that flow from constitutional rights have grown more severe.
Today, if an irresponsible reporter betrays vital national secrets, the
information may be in the enemy's headquarters in a few minutes, and may be used
to kill American soldiers and allies a few minutes later. Such harm was not
possible in an age when information traveled from America to Europe by sailing
ship. Correspondingly, a libelous television program can ruin a person's
reputation throughout the nation, a feat no single (p.1210) newspaper could have accomplished. Likewise, criminal
enterprises have always existed, but the proliferation of communications and
transportation technologies such as telephones and automobiles makes possible
the existence of criminal organizations of vastly greater scale--and harm--than before.

In short, the proposition that the (arguably) greater dangers of
semiautomatics justify a ban on modern firearms technology proves too much,
since it allows a ban on many other modern objects used to exercise constitutional rights in harmful ways.

Virtually every freedom guaranteed in the Bill of Rights causes
some damage to society. The authors of the Constitution knew that legislatures
were inclined to focus too narrowly on short term harms: to think only about
society's loss of security from criminals not caught because of search
restrictions, and to forget the security gained by privacy and freedom from
arbitrary searches. That is why the framers created a Bill of Rights--to put a
check on the tendency of legislatures to erode essential rights for short-term gains.

Persons who find the above argument unpersuasive are not without a
remedy. If the constitutional right to bear arms has become inappropriate for
modern society because the people are so dangerous and the government is so
trustworthy, then a constitutional amendment to abolish or limit the right may
be proposed. But, it is not appropriate for courts to flout an existing
constitutional guarantee, even if they personally think it is unimportant.[172]
As Justice Frankfurter answered when the Supreme Court's self-incrimination
decisions were assailed as medieval technicalism inconsistent with modern
government's need to detect criminals and subversives: "If it be thought that
the privilege is outmoded in the conditions of this modern age, then the thing
to do is to take it out of the Constitution, not to whittle it down by the
subtle encroachments of judicial opinion."[173]

Recognizing that the right to arms is not limited to technology in
existence when the particular arms guarantee was written does not mean that
appropriate laws may not deal with new technologies. For example, although sound
trucks did not exist when the First Amendment was written, they have been held
to be within the scope of the First Amendment, while subject to reasonable time,
place, and manner regulation.[174] (p.1211)

Accepting the evolution of firearms technology does not necessarily mean accepting the parade of horribles which typically ends with the
question "what if everyone owned a nuclear weapon?" The right to arms is
typically phrased in terms that refer to carrying the weapon (i.e. "keep and
bear"). This suggests that the guarantee protects only arms which one can carry in the hands, and not tanks or jet fighters.

If we want to examine historical conditions in more detail, we can
see that the personal arms which existed at the time of the Second Amendment
(and the Colorado, Ohio, and Oregon constitutions) were all hand-carried weapons
which could be precisely aimed at a particular target. Such weapons included
firearms, edged weapons, and bows. In contrast to weapons which can be
skillfully directed to single targets, weapons such as grenades or other
explosives cannot be directed at a single target, but can kill everyone in the
area. The historical reasoning would support constitutional protection for
firearms accessories which make firearms even more accurate, such as scopes and
laser sights, even though scope technology was not commercially applied to early
firearms, and laser technology was not even contemplated. Likewise, should the
weapon itself fire a precisely-directed laser, the laser gun itself would be
protected. In contrast, a new weapon which fired projectiles indiscriminately
(such as a device which fired dozens of arrows at once, at random angles) would
not be protected, even though the projectile itself (an arrow) clearly is within
the historical intent of the right to arms. In sum, as Indiana Supreme Court
Chief Justice Emmert wrote:

Nor can it be maintained that the right to
bear arms only protects the use of muskets, muzzle-loading rifles, shotguns
and pistols, because they were the only ones used by the Colonists at the
time. It might as well be argued that only a house of the architectural
vintage of the Revolution would be protected against a present unreasonable
search and seizure. Modern guns suitable for hunting and defense are within
the protection of our Bill of Rights just the same as the owner of a modern
ranch house type home is protected against unlawful searches.[175]

Finally, we should point out that the Oregon Court of Appeals could have upheld the Portland law with a much narrower,
simpler rationale. In doing so, the court could have avoided making the radical,
rights-eviscerating assertion that the Oregon Constitution protects only
duplicates of the exact arms technology that existed in 1859.[176]
Indeed, this is the approach of the Oregon dissent.[177] (p.1212)

The Oregon State Shooting Ass'n concurring and dissenting opinion stated that the majority opinion "is an example of judicial manipulation
of the constitution to meet a perceived localized social need."[178]
"The listed weapons are the 'sort of' weapons commonly used for personal defense
in 1859. They are rifles, pistols and shotguns."[179]
The majority opinion "will come as a great shock to the many gun owners in
Oregon who have possessed semi-automatic rifles and pistols for decades."[180]
However, the ordinance did not unreasonably interfere with the right to bear
arms because it is not "a complete ban on the possession of the listed firearms
in public places"[181] and "does not interfere with a citizen's defense capacity
in their homes or other private places."[182]

The authors of this article would not have upheld the Multnomah
County law under any rationale, because we believe that the law did not have a
close enough connection to public safety (in terms of the guns at issue being
commonly used in crime, and the gun restrictions having any real effect on
crime), and because we believe that the Portland restrictions were more onerous
than the Oregon dissenters did. Nevertheless, the Oregon dissent represents a
judicial approach which respects the right to keep and bear arms.

III. A Fundamental Right?

The "assault weapon" cases also implicated the issue of whether the right to arms is fundamental. This issue never really arose
in Oregon, since the focus was on the supreme court's historical tests.[183]
In Ohio, the court disposed of the issue quickly, noting that the right to arms
was listed in the Ohio Bill of Rights along with other rights, all of them
fundamental, and hence the right to arms was fundamental.[184]
In the Colorado decision Robertson v. City of Denver,[185]
the issue proved to be more complex. The complexity arose from a difference
among the members of the Robertson court concerning the need to decide
whether the right to keep and bear arms in Colorado was fundamental in order to
resolve the case.[186]

The argument in favor of the right being considered fundamental ran
as follows: all specific rights in the Colorado Bill of Rights are fundamental,
(p.1213) since the article containing the Bill of Rights contains a prefatory clause declaring that these rights are "the
principles upon which our government is founded . ..."[187]

The Colorado Constitution states the right to arms in forceful terms
which are stronger than words used to delineate some other rights in Colorado
Constitution:[188] "the right of no person to keep and bear arms in defense
of his home, person and property, or in aid of the civil power when thereto
legally summoned, shall be called in question; but nothing herein contained
shall be construed to justify the practice of carrying concealed weapons."[189]

Prior to the "assault weapon" case, the Colorado Supreme Court had
reviewed two cases involving restrictions on the right to arms by law-abiding
persons. The first case, People v. Nakamura,[190]
invalidated a state law prohibiting aliens from possessing a shotgun, rifle, or
pistol:

[The state] cannot disarm any class of persons or
deprive them of the right guaranteed under section 13, article 2 of the
Constitution, to bear arms in defense of home, person, and property. The
guaranty thus extended is meaningless if any person is denied the right to
possess arms for such protection ....

[I]n so far as it denies the right of the
unnaturalized foreign-born resident to keep and bear arms that may be used in
defense of person or property, [the law] contravenes the constitutional
guaranty and therefore is void. "The police power of a state cannot transcend
the fundamental law, and cannot be exercised in such manner as to
work a practical abrogation of its provisions."[191]

The Nakamura majority rejected the
dissenting opinion's argument that a trial court may determine whether a
specific firearm is possessed for the purpose of defense of home, person, or
property.[192] When Nakamura was (p.1214)decided in 1936, the court was aware of the wide
availability of semiautomatic firearms,[193]
a fact which made the court's refusal to inquire as to whether a particular type
of firearm was being possessed for defense of "home, person, and property" all
the more significant for whether a legislative body could make a blanket
declaration that certain types of semiautomatic firearms could not be possessed
for defense. The Colorado Supreme Court never discussed this implication of
Nakamura in Robertson.[194]

The major gun law case in Colorado was City of Lakewood v.
Pillow,[195] a unanimous 1972 decision which invalidated a local
ordinance which prohibited the possession of a revolver, pistol, shotgun or
rifle, except within one's domicile, one's business, or at a target range,
unless licensed by the city. Finding the ordinance to be "unconstitutionally
overbroad," the court explained:

An analysis of the foregoing ordinance reveals
that it is so general in its scope that it includes within its prohibitions
the right to carry on certain businesses and to engage in certain activities
which cannot under the police powers be reasonably classified as unlawful and
thus, subject to criminal sanctions. As an example, we note that this
ordinance would prohibit gunsmiths, pawnbrokers and sporting goods stores from
carrying on a substantial part of their business. Also, the ordinance appears
to prohibit individuals from transporting guns to and from such places of
business.... Several of these activities are constitutionally protected. Colo.
Const. art. II, § 13. Depending upon the circumstances, all of these
activities and others may be entirely free of any criminal culpability yet the
ordinance in question effectively includes them within its prohibitions and is
therefore invalid.

A governmental purpose to control or prevent
certain activities, which may be constitutionally subject to state or
municipal regulation under the police power, may not be achieved by means
which sweep unnecessarily broadly and thereby invade the area of protected
freedoms. Even though the governmental purpose may be legitimate and
substantial, that purpose cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more narrowly
achieved.[196](p.1215)

From the plaintiffs' viewpoint, Lakewood's
observation that the restrictive gun law impermissibly served to "broadly stifle
fundamental personal liberties" removed any doubt about whether the right to
arms was fundamental.[197]
In cases decided in later years, the Colorado Supreme Court continued to cite
Lakewood and its "fundamental personal liberties" language.[198]

As a final argument, the plaintiffs pointed to U.S. Supreme Court
language emphasizing that the courts have no authority to declare that some Bill
of Rights freedoms "are in some way less 'fundamental' than" others: "Each
establishes a norm of conduct which the Federal Government is bound to honor--to
no greater or lesser extent than any other inscribed in the Constitution....
Moreover, we know of no principled basis on which to create a hierarchy of
constitutional values ...."[199]

The City of Denver responded to the plaintiffs' and the Attorney
General's fundamental rights argument. First, Denver asserted that not all
Constitutional rights are fundamental.[200]
Plaintiffs responded that the only rights ever declared non-fundamental were
those not contained in the Bill of Rights.[201]
Defendants suggested that the right to bear arms "is not essential to individual
liberty."[202]

Defendants also argued that the supreme court in Lakewood had
misapplied U.S. Supreme Court precedent on the First Amendment by using First
Amendment overbreadth doctrine to analyze a gun restriction.[203]
In an amicus brief, the Denver District Attorney stated that "it is important
for this (p.1216)Court to limit [Lakewood
v.] Pillow" and to provide "a contemporary construction" of that
case.[204]

Defendants also pointed to several post-Lakewood cases in the
1970s where the supreme court had used the word "reasonable" in upholding
restrictions on the possession of arms by convicted felons and drunks.[205]
Plaintiffs argued that while restrictions on felons and drunks might be
evaluated on a "reasonableness" standard, the lower standard had not been
applied to law-abiding, responsible gun owners.[206](p.1217)

Denver also pointed to decisions stating the right to arms is not
"absolute."[207] The plaintiffs conceded this but pointed out that being
non-absolute is not the same as being non-fundamental.[208]

Although courts of sister states are not definitive interpreters of
Colorado law, Lakewood had been prominently quoted by the courts of other
states to invalidate firearms prohibitions, most notably for its statement that
the right to arms is "fundamental."[209]

What did the Colorado Supreme Court do with the fundamental rights
issue? The court could have followed Lakewood and its progeny and again
stated that the right to arms was fundamental. Or the court could have followed
the Denver District Attorney's suggestion and revisited the Lakewood
decision. Or the court could have followed Denver's advice and ruled that,
regardless of Lakewood's holding, subsequent decisions have construed the
right to arms as non-fundamental. The court did none of these things.

In a concurring opinion in Robertson v. City of Denver,
Justice Vollack (subsequently promoted to Chief Justice) stated that he
considered the right to arms non-fundamental because it was, in his view, not an
important part of (p.1218)liberty in
contemporary society.[210]
At least Justice Vollack announced what he was doing: lowering the right to arms
to a level of rational basis review because he did not like it.[211]

In contrast, the majority opinion asserted that the Colorado Supreme
Court had never decided whether the right to arms was fundamental--as if the
court's repeated reference to "fundamental personal liberties" in
Lakewood and its progeny had never been written. Indeed the court
carefully avoided quoting the "fundamental personal liberties" language. Having
sidestepped the very issue that all litigants treated as the heart of the case,
the court then went on to apply rational basis review to the ordinance in
question--effectively treating the right to arms as non-fundamental, but without
having the honesty to say so.

IV. Standard of Review

In Arnold v. City of Cleveland,[212]
history was no issue. The parties framed the issue in terms of fundamental
rights and the Ohio Supreme Court settled that question at the outset, by
declaring that the right to arms under the Ohio Constitution was fundamental.[213]
In almost every other state, an infringement on a fundamental right is subjected
to the strict scrutiny test. The Ohio Court, however, held that restrictions on
fundamental rights are subject only to a reasonableness test.[214]
Notably, the Ohio holding was not limited to arms rights cases, so any right
under the Ohio Constitution will henceforth be protected only by reasonableness
review. Section A of this part examines how the Ohio court chose a
reasonableness test. Section B of this part discusses the standard of review in
Colorado, while sections C and D argue that the Ohio, Oregon, and Colorado
courts could (and should) have declared the ordinances unconstitutional, without
even needing to consider a standard of review.

A. Ohio's Standard of Review

The result in Arnold was almost
foreordained by the first paragraph:

In determining the constitutionality of an
ordinance, we are mindful of the fundamental principle requiring courts to
presume the constitutionality of lawfully enacted legislation. Univ. Hts. v. O'Leary, 429 N.E.2d 148, 152 (1981); and Hilton v. Toledo, 405 N.E.2d 1047, 1049 (1980). Further, the
legislation being challenged will not be invalidated unless the challenger
establishes that it is (p.1219)unconstitutional beyond a reasonable doubt.
Id.See also Hale v. Columbus, 578 N.E.2d 881, 883
(1990).[215]

We will now turn to each of the three cases that
formed the foundation for the Arnold standard of review; the cases are
important not just to Arnold, but to how the Ohio court erred on all
constitutional issues.

1. City of University Heights v.
O'Leary

O'Leary involved a challenge to
municipal ordinances which prohibited individuals from purchasing, owning,
possessing, or transporting handguns without an identification card.[217]
The citizen charged with violating these ordinances was a private detective
carrying several unloaded firearms in cases locked in the trunk of his
automobile[218] in compliance with the state regulations for transporting
firearms.[219] The portion of the decision cited in Arnold
states:

A duly enacted municipal ordinance is
presumed constitutional; the burden of establishing the unconstitutionality of
an ordinance is upon the one challenging its validity. East
Cleveland v. Palmer (1974), 40 Ohio App. 2d 10, 317 N.E.2d 246.
Appellee has failed to sustain this burden. Sections 626.04(a) and 626.09(a)
are not violative of due process. They are not vague. It is clear what is
required: a firearm owner's identification card issued by either a
non-resident's home municipality, or by the city of University Heights. The
method for acquiring a card is clearly set forth in Chapter 626.[220]

In O'Leary the trial court and
intermediate appellate court both ruled that the University Heights ordinances
were unconstitutional because of overbreadth, vagueness, and unenforceability.[221]
The appellate court additionally ruled the ordinances violative of due process
because they penalized innocent conduct.[222]
The Ohio Supreme Court reversed after very little discussion of Ohio law or the
case itself. Its decision centered on a discussion of three federal cases and
one from the District of Columbia: Lambert v. California,[223]United States v. Mancuso,[224]United States v. Freed,[225]
and McIntosh v. Washington.[226]

In Lambert v. California the Supreme Court ruled
unconstitutional a Los Angeles municipal ordinance which required convicted
felons to register (p.1220)with the Chief of
Police shortly after their arrival in the city.[227]
The Court was persuaded in part by the passive nature of the defendant's
activity.[228] Lambert's activity, remaining in Los Angeles, otherwise
would be considered harmless and an exercise of her freedom of association and
travel, both protected by the First Amendment. Her conduct would not ordinarily
lead one to inquire about the lawfulness of the conduct. Additionally, the court
found that registration of convicted felons is done primarily for the
convenience of law enforcement agencies.[229]

In United States v. Mancuso[230]
the U.S. Court of Appeals for the Second Circuit reversed the conviction of a
defendant for violating 18 U.S.C. Section 1407, requiring
convicted drug offenders to register with customs officials before and after
leaving the country.[231]
The Second Circuit relied on Lambert because of the passive nature of the
defendant's conduct, a crime of omission.[232]
Like the defendant in Lambert, Mancuso was exercising his freedom of
association and travel. Both the district court and the Second Circuit
considered Mancuso's lack of knowledge about the registration requirement in
making their decisions.[233]
The Second Circuit determined that knowledge of the registration requirement was
required:

Since the district court specifically found
that there was 'no knowledge' of the statute, we hold that Mancuso did not
violate 18 U.S.C. 1407 .... On practical, purposive
grounds, it is difficult to understand how elimination of the requirement of
knowledge would have furthered the Congressional aim to make detection of
illegal narcotics importation easier.... When there is no knowledge of the
law's provisions, and no reasonable probability that knowledge might be
obtained, no useful end is served by prosecuting the "violators."[234]

By imposing a knowledge requirement before
penalizing a felon for exercising the right to travel, Mancuso seems to
militate in favor of a knowledge requirement before penalizing a non-felon
exercising the right to transport a firearm.

United States v. Freed[235]
limited Lambert and Mancuso's passive activity defense. Defendant
Freed was prosecuted for possession of unregistered (p.1221)hand grenades, in violation of the National Firearms
Act.[236] Enacted in 1934, the Act restricts the possession or
transfer of unregistered machine guns, short-barreled rifles or shotguns, and
"destructive devices," including hand grenades.[237]
Writing for the Court, Justice Douglas distinguished Lambert, using the
rationale of Mancuso: "This is a regulatory measure in the interest of
the public safety, which may well be premised on the theory that one would
hardly be surprised to learn that possession of hand grenades is not an innocent
act. They are highly dangerous offensive weapons ...."[238]

With the aforesaid cases forming the background, the Ohio Supreme
Court in O'Leary mirrored the analysis of McIntosh v.
Washington,[239] in which the District of Columbia Court of Appeals upheld
the firearms registration requirement enacted by the District of Columbia in
1976. Both courts relied on Freed's "dangerous or deleterious devices"
rationale. The conclusion of both the Ohio Supreme Court in O'Leary and
the District of Columbia Court of Appeals in McIntosh was based on the
premise that firearms are dangerous or deleterious devices.[240]
The problem with this line of reasoning is that ownership and use of
firearms--unlike ownership of hand grenades or heroin--is a fundamental right,
as confirmed by the Ohio Supreme Court in Arnold.[241]

Traditionally, the items held to be "dangerous or deleterious
devices" have not been items for which Congress wants to promote the regulated
use.[242] Rather, as the Third Circuit noted in a similar case,
"[Congress's] purpose was to prohibit this conduct, not to encourage
registration prior to engaging in it."[243]
So how did O'Leary find the innocent possession of unloaded firearms to
be "dangerous or deleterious"?

The core of the O'Leary decision rests on a three-part
test derived from the Lambert factors:

First, mere passive conduct is not involved
here. To violate the law, one must acquire possession of a firearm. United States v. Crow (C.A. 9, 1971), 439 F.2d 1193, 1196,
vacated on other grounds, 404 U.S. 1009, 92 S. Ct. 687,
30 L.Ed.2d 657 (1972); State v. Drummonds
(1975), 43 Ohio App. 2d 187, 188-189, 334 N.E.2d 538. Second, the
(p.1222)regulated conduct here, possession
of a firearm, is one which by its nature suggests the possibility of
governmental regulation. United States v. Freed, supra; United States
v. Weiler, supra. Third, the gun registration ordinance involved here
is not designed solely for the convenience of law enforcement agencies. The
purpose of the ordinance is to protect the citizens of University Heights from
violence arising from handguns and other firearms by keeping firearms out of
the hands of unfit persons, that is, those ineligible to receive a Restricted
Weapons Owner's Identification Card. SeeMosher v.
Dayton (1976), 48 Ohio St. 2d 243, 358 N.E.2d 540; State v.
Drummonds, supra; Photos v. Toledo (1969), 19
Ohio Misc. 147, 250 N.E.2d 916.[244]

The first proposition, that acquiring a gun is
not passive, was clearly true. The third proposition, that the gun registration
ordinance was not solely for the convenience of the government, was at least
arguably true.[245] The second proposition, however, revealed the Ohio court's
hostility to the right to keep and bear arms. As noted above, a case involving
grenades and other unusual destructive devices (not covered by the right to
arms) is no precedent for ordinary firearms being considered "dangerous or
deleterious."[246] The other cases relied on by the Ohio court, United
States v. Crow,[247]State v. Drummonds,[248]
and United States v. Weiler,[249]
all involved convicted felons. Crow was convicted of murder ten years before his
firearms offense.[250] Drummonds was convicted of stabbing with intent to kill or
wound before he was charged with the later firearms offense.[251]
A court citing these cases for the result that gun owners are presumed to know
they may need to register their weapons with any locality they pass through is
equating all gun owners with convicted murderers.

The O'Leary decision was written before Arnold
announced that the right to arms was fundamental in Ohio. Given that
announcement, it was incongruous for Arnold to rely on O'Leary,
which is based on the proposition that the owning of firearms is "dangerous or
deleterious."[252] In early 1994, the United States Supreme Court announced a
decision which made (p.1223)O'Leary and
Arnold all the more untenable.[253]
A gun owner possessed a semiautomatic Colt rifle which sometimes malfunctioned
by firing two shots at once.[254]
The two-shot malfunction made the gun (by federal definition) a "machine gun,"
since one trigger press would sometimes fire two bullets.[255]
The gun owner was prosecuted for possessing an unregistered machine gun.[256]
The government conceded the defendant's lack of knowledge, but argued that as a
possessor of a semiautomatic rifle, he should have been on notice that he owned
an object which might be subject to regulation.[257]
In Staples v. United States, the Court held that ownership of a
semiautomatic firearm was not the type of activity that should put one on notice
that one may be subject to regulation.[258]

Having equated gun owners with convicted murderers and guns with
grenades, O'Leary relied upon City of East Cleveland v. Palmer[259]
to establish its standard of review for municipal ordinances.[260]Palmer was a challenge to a $75 parking ticket for violation of a
municipal ordinance prohibiting parking along the city streets for more than
five hours at night.[261]
Parking on the street at night is hardly a fundamental right, but the Ohio
Supreme Court seems to equate gun control measures with parking violations in
using Palmer as its standard of review.

In announcing its standard of review, the
Arnold court also relied on Hilton, a case involving a challenge
to a municipal ordinance prohibiting certain advertising signs.[263]
The ordinance prohibited flashing portable advertising signs, and limited use of
any portable sign to a total of 15 days in one location;[264]
however, it allowed the use of permanent electric signs.[265]
In approving this ordinance as a valid exercise of the municipal police power to
(p.1224)regulate commercial activity,[266]
the Ohio Supreme Court applied the following standard of review:

An enactment of the legislative body of a
municipality is entitled to a presumption of constitutionality. The
presumption may be rebutted by showing that the ordinance lacks a real or
substantial relationship to the public health, safety, morals or general
welfare, or that it is unreasonable or arbitrary .... Furthermore, it is
incumbent upon the party alleging unconstitutionality to bear the burden of
proof, and to establish his assertion beyond a reasonable doubt.[267]

This passage from Hilton is a source of
the standard of review used in Arnold.[268]
Conspicuously absent from the Arnold test is the second sentence from
Hilton, which explains how the presumption of constitutionality may be
rebutted.[269] The full test for a review of a municipal ordinance, as
announced in Hilton, is substantially similar to the test employed by the
court in Cincinnati v. Correll,[270]
another case cited by the Arnold court.[271]
More of this comparison will be made later, but it suffices to say that the
Arnold court edited the Correll test to remove its full effect.[272]
Both tests require that the challenged ordinance must have a "real or
substantial relationship" to the public health and welfare.

Hilton's test for review is derived from several Ohio
cases, which tested the constitutionality of municipal ordinances, dating back
to 1918: City of Dayton v. S.S. Kresge Co.,[273]Alsenas v. City of Brecksville,[274]State v. Renalist, (p.1225)Inc.,[275]State ex rel. Ohio Hair Products Co. v. Rendigs,[276]City of East Cleveland v. Palmer,[277]
and City of Cincinnati v. Criterion Advertising Company.[278]
All cases cited, except Renalist, were constitutional challenges to
municipal ordinances. The challenged ordinances limited commercial conduct or
practices. In most cases, no freedom of speech issue was even raised. To the
extent that the right to speech did appear, it was in the context of commercial
speech which (whether rightly or wrongly) is entitled to significantly less
judicial protection than "core" First Amendment speech.[279]

Arnold cited Hale v. City of
Columbus[281] for the proposition that a constitutional challenge to a
municipal ordinance must meet a burden of proof "beyond a reasonable doubt" in
order to prove unconstitutionality.[282]
Once (p.1226)again, as shown by the edited
test from Hilton, the court has engaged in selective quotation to achieve
its desired end. When the full test is considered, the minimum rationality
standard applied in Arnold appears incomplete. The full paragraph from
Hale reads as follows:

Legislative acts enjoy a strong presumption
of constitutionality and any challenge must establish beyond a reasonable
doubt that the enactment is unconstitutional .... The person challenging the
legislation must show evidence that the legislation lacks the requisite nexus
to its stated purpose.... Thus, the issue in the facts before this court is,
whether the ordinance bears a real and substantial relation to a proper
subject of municipal police power under Section 3, Article XVIII of the
Ohio Constitution.[283]

None of the cases cited in Hale to
develop the standard of review involved constitutionally protected activity.
Instead, the cases involved a public interest group's complaint that the
legislature had not controlled utility advertising strictly enough,[284]
a complaint that the legislature should not have given money to a veterans'
group,[285] a challenge to an ordinance requiring the use of rubber
tires on city streets,[286]
and a challenge to a law banning pinball machines.[287](p.1227)

4. Arnold's Balancing Test

Laws or ordinances passed by virtue of the
police power which limit or abrogate constitutionally guaranteed rights must
not be arbitrary, discriminatory, capricious or unreasonable and must bear a
real and substantial relation to the object sought to be obtained, namely, the
health, safety, morals or general welfare of the public.[289]

In quoting this passage, the Arnold
court left out the paragraph from Correll which states: "The Courts of
this country have been extremely zealous in preventing the constitutional rights
of citizens being frittered away by regulations passed by virtue of the police
power."[290]

"Therefore," the unzealous Ohio Supreme Court announced, "the
test is one of reasonableness."[291]
But, of course, "reasonableness" was only one part of the test which the
Arnold court itself quoted. What about whether there is "a real and
substantial relation to the object sought to be obtained?"[292]
It should not be asking too much for a court that announces a test on one page
to actually use the test on the next page.

After examining the Arnold court's misapplication of
municipal cases involving commercial law to a fundamental rights case, the
reader may wonder why the Ohio court did not follow precedents which required a
strict scrutiny standard of review for infringements of state constitutional
rights. The answer is that in Ohio, there were no such cases. The Ohio dissent,
which argued for a strict scrutiny standard, could cite not cite any Ohio
precedents.[293] Instead, it cited cases from other states, including the
City of Lakewood v. Pillow decision from Colorado, a case consistently
interpreted, until the 1994 Colorado Supreme Court decision, to mean that
infringements on the state right to arms of law-abiding citizens should be
subjected to rigorous judicial scrutiny.[294](p.1228)

B. Narrow Tailoring and Overbreadth

As noted above, the Arnold court quoted a
two-part test for its low-level review of the Cleveland ordinance, but applied
only the first part of the test.[295]
Similarly, in Lakewood, the Colorado Supreme Court, in announcing that it
could rely on tests from prior cases without needing to decide if the right to
arms was fundamental, used only a single component of the tests in the prior
cases: whether the ordinance was within "the police power."[296]
The Colorado court carefully ignored language from its earlier cases which
dictated that a law could not be within the police power if it was "overbroad"
or not "narrowly tailored."[297]
Relying on Lakewood, Colorado courts had repeatedly used the overbreadth
doctrine to strike down laws, even when fundamental rights were not involved.[298]
Additionally, courts from other states had cited Lakewood while applying
the overbreadth analysis to gun restrictions.[299]
Yet, in Robertson, the supreme court ruled the trial court was wrong, as
a matter of law, to have applied overbreadth analysis to the Denver gun ban.[300]
However, prohibiting lawful acquisition of a constitutionally-protected object
simply because some criminals might misuse it had already been declared
unconstitutional.[301]

A requirement for narrow tailoring had also been articulated in
Lakewood.[302] Instead of implementing a blanket gun ban, Denver could
have more vigorously enforced existing laws involving criminal misuse of
firearms, or passed a licensing law designed to allow law-abiding citizens to
obtain semi-automatic firearms, while preventing criminals from obtaining the
weapons. Again, the district court's use of narrow tailoring analysis was (p.1229)ruled erroneous,[303]
even though the district court had merely been following the Colorado Supreme
Court's 1972 Lakewood decision.[304]

C. Bans as Illegitimate Per Se

Ohio Justice Hoffman argued in dissent that "a
stricter standard must be utilized when the legislation places restrictions upon
fundamental rights, particularly where the legislation prescribes an outright
prohibition of possession as opposed to mere regulation of possession."[305]
We would go further still than Justice Hoffman. We would argue that the entire
debate over standard of review should have been superfluous, for a gun
prohibition applied to law-abiding citizens could never be constitutional--even
if it could pass strict scrutiny.

In cases implicating the First Amendment (entitled to no more, and
no less protection than the Second Amendment), it is well-established that no
amount of demonstrated harm may justify banning speech.[306]
In a due process case involving vagrants, an earlier Colorado Supreme Court had
affirmed that no law enforcement necessity could justify an infringement of
rights.[307]

It is true that a gun prohibition ordinance may be an attempt to
serve the compelling state interest in reducing violence. But also compelling is
the interest in suppressing Nazi speech, for what Nazi speech led to in Germany,
it might lead to in America. In addition, there is a well-developed compelling
state interest in censorship of television based on numerous studies showing
that prolonged exposure of children to television leads to increased homicide
and other violent crime.[308]
Another compelling state interest could be asserted (p.1230)in altering the racial balance of a student body or
increasing the number of lawyers of a particular racial or ethnic group.

Yet courts will invalidate such laws, "not as insubstantial but as
facially invalid."[309] No compelling state interest can support the banning of
writings or movies because they might legitimize rape or adultery, because "the
First Amendment's basic guarantee is of freedom to advocate ideas."[310]

D. Explicitly Stated Anti-constitutional
Legislative Purpose

Suppose that a restrictive municipal zoning
ordinance declared that its purpose was: "1. To reduce traffic congestion; 2. To
reduce fire hazards associated with excessive density; and 3. To prevent racial
minorities from living in the city." While the first two purposes of the
ordinance are generally considered legitimate zoning purposes, the third purpose
(racial discrimination) is plainly illegitimate. The existence of the
illegitimate motive would be sufficient (even if the ordinance were otherwise
flawless) for the ordinance to be declared unconstitutional.[311]

While illegitimate motivations usually must be ferreted out through
litigation, the Portland,[312]
Cleveland,[313] and Denver[314]
city council majorities (p.1231)believed so
deeply in their illegitimate motives that they placed them in black and white at
the beginning of the statutes. If the right to arms were being treated like the
right to freedom of speech or the right to be free of state-sponsored racial
discrimination, the Portland, Cleveland, and Denver ordinances would have been
instantly struck down on the basis of illegitimate motivation, without need for
further inquiry.

The Cleveland City Council asserted that the guns it was banning
were made for "anti-personnel" purposes, while the guns which it was not banning
"are primarily designed and intended for hunting, target practice, or other
legitimate sports or recreational activities."[315]
Likewise, "assault weapons" were banned because the Denver City Council found
they were "designed primarily for military or antipersonnel use,"[316]
and were regulated in Portland because their anti-personnel purpose outweighed
"any function as a legitimate sports or recreational firearm."[317]
The Ohio, Oregon and Colorado constitutions explicitly guarantee the right to
bear arms for personal protection, and for defense of the state--two firearms
uses which are "non-sporting" (p.1232)and
"anti-personnel."[318] Although the city councils had, in effect, openly declared
their illegitimate purpose (restricting of guns used for constitutionally
protected anti-personnel purposes), neither the Oregon, Ohio nor Colorado courts
considered for a moment that an explicitly stated, anti-constitutional purpose
might invalidate the ordinance.[319]

The Colorado Constitution, article II, section 3 states: "All
persons have certain natural, essential and inalienable rights, among which may
be reckoned the right of enjoying and defending their lives and liberties; of
... protecting property; and of seeking and obtaining their safety." The Denver
Ordinance allows persons who owned "assault weapons" before the effective date
of the Ordinance to retain their guns by registering them with the police.[320]
But these "grandfathered" registrants were forbidden to use their registered
guns for self-defense, even against a deadly attack in their own home. The lower
court declared the self-defense prohibition unconstitutional; while requiring
the registration of certain guns might be permissible, forbidding the use of a
lawfully owned gun for protection was not.[321]

On appeal, even the Center to Prevent Handgun Violence (the legal
arm of the lobby which helped create the whole "assault weapon" prohibition
issue) in its amicus brief did not attempt to justify a ban on use of a
registered firearm in lawful self-defense; the Center argued instead that the
ordinance had been misinterpreted.[322]

Yet the Colorado Supreme Court, after ruling that "assault weapons"
(as broadly defined by the City Council) could be banned, also concluded that
the Council could ban the use of lawfully registered, grandfathered guns in
lawful self-defense.[323]
While Denver had offered various reasons for wanting (p.1233)to control the "proliferation" of "assault weapons,"
the city attorney during the course of the case offered no reason for, and did
not attempt to defend, the ban on use of lawfully owned guns for protection. A
court which upholds a gun law which not even the gun prohibition lobby and its
allies will defend is, it might be suggested, not much concerned about
protecting the right to arms.

V. Fact-Finding

In Ohio, the Arnold court found that a
fundamental interest was at stake, and then applied a "reasonableness" test to
the infringing ordinance.[324]
In Colorado, the Robertson court acted as if the fundamental rights issue
were undecided, and then proceeded to apply a reasonableness test.[325]
Even if we assume that infringements on rights contained in the Bill of Rights
should be subject only to a test of "reasonableness," the premise of any "test"
is that some things will pass the test, and others will fail. But as interpreted
by the Colorado and Ohio courts, the "reasonableness" test is foreordained never
to find unreasonable any infringement or prohibition on the right to arms.

The Ohio case came before the supreme court following Cleveland's
successful motion to dismiss, a motion which precluded any discovery.[326]
The Colorado case had arisen out of cross motions for summary judgment,
following discovery.[327]
In either case, the trial court was required (and the appellate courts were
required to make sure that the trial courts did so) to give every benefit of
doubt to the non-moving party, as to which facts would be proven at trial.[328]
The Arnold appeal, besides involving constitutional issues, also raised
the propriety of the trial court's sua sponte conversion of the motion to
dismiss into a motion for summary judgment, and then granting the motion before
any discovery could be had.[329]
The Ohio Supreme Court found any procedural error to be irrelevant, since, "we
believe that appellants can prove no set of facts entitling them to relief."[330]

The factual showing that the Cleveland plaintiffs wanted to make in
the trial court was offered in part through extensive exhibits of legal and
criminological scholarship, and governmental crime statistics, in appendices to
the appellate motions.[331]
The Denver plaintiffs and the Attorney General had the opportunity to make a
much more extensive showing, with exhibits to the summary judgment motion. Thus,
while the Cleveland litigants complained (p.1234)that the Cleveland government refused to obey public
information laws requiring disclosure of the government's data about the
(non-)use of "assault weapons" in Cleveland crime,[332]
the Colorado litigants were able to discover Denver's data.

At a hearing before the Denver City Council, Police Chief Zavaras
testified that "assault weapons are becoming the weapons of choice for drug
traffickers and other criminals."[333]
The City Council passed a gun ban which made the specific finding that "law
enforcement agencies report increased use of assault weapons for criminal
activities. This has resulted in a record number of related homicides and
injuries to citizens and law enforcement officers."[334]
During discovery, the Colorado Attorney General and the private plaintiffs
inventoried every single firearm in Denver police custody. The ordinance covered
none of the 232 shotguns, nine of the 282 rifles (3.2%), and eight of the 1,248
handguns (0.6%) in the police inventory.[335]
Of the fourteen banned guns in Denver police custody, one had been used in a
crime of violence. Half had been seized from persons who were never charged with
any offense.[336]

Consistent with the Denver data, the plaintiffs in both the Denver
and Cleveland cases presented police data from many other cities to support the
proposition that "assault weapons" were almost never used in crime.[337]
The Ohio and Colorado majorities specifically found this evidence irrelevant.[338](p.1235)In other words, the city governments
could outlaw firearms which had not been crime problems and which, it could be
proven,[339] posed no danger of becoming a crime problem. The city
governments could outlaw something that might become a problem, whether or not
credible evidence suggested that it might. In a free press analogy,
Playboy and other non-obscene erotic literature could be outlawed because
they might at some future point cause rape, even if it could be proven that they
have never caused rape, and there is no evidence that they will do so in the
future.[340]

Even if we presume that a government may ban unusually dangerous
firearms, it remains to be proven whether the particular firearms banned are in
fact unusually dangerous. Yet in upholding the grant of the motion to dismiss
the plaintiffs' case, the Ohio Supreme Court foreclosed the plaintiffs from
introducing any evidence as to whether the (very large) number of firearms
banned by Cleveland were in fact more powerful, more likely to be used in crime,
or more dangerous in any way at all. The Cleveland City Council had avowed its
intent not to ban "sporting" firearms, but only "antipersonnel" ones.[341]
Yet the Ohio majority saw no need for a factual hearing as to whether any one of
the numerous guns banned by Cleveland could be proven, perhaps beyond a
reasonable doubt, to be in fact a "sporting" gun rather than an "antipersonnel"
one.[342]

In the first paragraph of the Arnold opinion, the majority
announced that challengers to a municipal ordinance must prove "beyond a
reasonable (p.1236)doubt" that the ordinance
is unconstitutional.[343]
Articulating a "reasonable doubt" standard of proof implies that proof can be
made. But what kind of proof can be made when the government's assertions when
enacting the ordinance are taken as the irrefutable last word, against which no
evidence can matter?[344]

Thus, as the Ohio dissent complained:

Whether the weapons banned by the Cleveland
ordinance are primarily antipersonnel or whether they are equally suitable for
defensive or sporting purposes has yet to be demonstrated .... The mere
declaration by Cleveland Council that it finds the primary purpose of assault
weapons to be antipersonnel and any civilian application or use of those
weapons is merely incidental to such primary antipersonnel purpose ... is,
standing alone, insufficient to satisfy the government's burden when such
legislation infringes upon a fundamental right .... The challenger must be
given an opportunity to demonstrate otherwise.[345](p.1237)

The Colorado majority took the same approach as
the Ohio majority. The Denver City Council had proclaimed that its motive in
enacting the ordinance was fighting crime.[346]
That proclamation was sufficient to prove to the court that the gun prohibition
was within "the police power."

In Oregon, the majority had, in its finding that "assault weapons"
are not protected by the Oregon right to arms, relied heavily on the finding
that some semi-automatic "assault weapons" have evolved from military
firearms.[347] Yet, as the dissent pointed out, the majority refused to
"separately analyze those listed firearms that did not originate as military
weapons."[348] Likewise, the majority worked hard to prove that
semiautomatic technology was unimaginable to the authors of the 1859 Oregon
Constitution; yet one of the guns which the majority discussed in a footnote (a
shotgun) uses a revolver mechanism (invented in the 1840s, and widespread
immediately thereafter) and is not a semiautomatic.[349]
Yet the majority did not discuss how a theory about semi-automatic guns which
are derivative of military guns could be applied to eliminate constitutional
protection for a revolver-action gun which has no military design in its
past.

"Facts are stubborn things," John Adams told the jury during the
Boston Massacre trial.[350]
"Facts are stupid things," President Reagan said in a malapropism.[351]
"Facts are nothing at all," the Ohio and Colorado Supreme Court majorities have
stated, when the rights of gun owners are involved.

Conclusion

Not every state court in recent years has treated
gun owners as having no rights that local governments were bound to respect as
long as guns were not completely prohibited. For example, the same year that
Portland, Denver, and Cleveland passed "assault weapon" laws, Atlanta did as
well. A lawsuit soon followed, and not long thereafter the court granted the
plaintiffs' motion for a temporary restraining order.[352]
In a brief ruling, the court held that the Atlanta prohibition conflicted with
state law[353] (and in dicta said that the ban would also violate the
state constitutional right to arms). The City of Atlanta did not appeal the
decision.

"Nothing is unsayable" in constitutional language, suggested Sanford
Levinson, as he compared the Death of Constitutionalism (the notion that the
Constitution is a text with bounded meaning), which he called the most important
development in modern legal theory, to the Death of God, the (p.1238)most important development in modern theological
theory.[354] The three cases from Colorado, Ohio, and Oregon represent
an apogee of the Death of Constitutionalism, for they are grounded in neither
the text of the relevant state constitution, prior precedent in the relevant
state court, the intent of the authors of the constitutions, nor on any factual
or logical inquiry. To the contrary, the decisions are an application of Justice
Powell's rueful observation that "Constitutional law is what the Court says it
is."[355] Yet only Justice Vollack in Colorado was forthright enough
to admit that the justices would, in effect, rip the right to bear arms out of
the Constitution because they did not like it.

Yet even as professors of theology proclaimed "the death of God" and
their views swept through the academy, most of the American populace appears to
think reports of the death highly exaggerated.[356]
Indeed the religions which most determinedly reject the academy's world view
(such as Pentecostalism) are the ones that are experiencing the most rapid
growth.[357]

Something similar is happening with regard to the death of
Constitutionalism. The 1993-1994 Ohio, Oregon, and Colorado decisions occurred
during the period when the right to bear arms was under the greatest attack in
history. The national media confidently proclaimed that the once-mighty National
Rifle Association was impotent. Congress enacted, and President Clinton
enthusiastically signed, the Brady Bill[358]
and then a federal "assault weapon" ban as they read polls which suggested that
the controls were overwhelmingly supported by the public.

But something happened on the way to the death of the right to bear
arms. The Brady Bill's requirement for local law enforcement to perform a
mandatory background check has been held unconstitutional by some courts as a
violation of the Tenth Amendment.[359]

Many gun owners, regardless of the courts' interpretation of the
laws, apparently believe that the "assault weapon" bans are unconstitutional,
and are behaving accordingly. While Cleveland and Denver mandated that existing
owners of "assault weapons" register themselves and their guns with the police,
only about one percent complied, a rate similar to compliance (p.1239)with other gun registration laws.[360]
After Congress passed a national "assault weapon" ban in the summer of 1994, the
gun-owner backlash against it was credited by President Clinton, and other
commentators, as responsible for delivering the House of Representatives to the
Republicans.[361]

In Ohio, Attorney General Fisher was defeated for re-election.[362]
Four years before he had won a close victory, in part because many gun rights
activists had no idea what he stood for. Four years later, they knew, and they
worked very hard to deny him re-election.[363]

In Colorado, Democratic challenger Dick Freese made the "assault
weapon" issue the centerpiece of his campaign against Attorney General Gale
Norton.[364] His major television commercial showed an "assault rifle"
menacingly pointed at the viewer, while informing viewers of Attorney General
Norton's support for "assault weapons." Gale Norton won over sixty percent of
the vote, the largest percentage received by any candidate for statewide office
in Colorado in 1994.[365]
The Oregon state legislature recently enacted legislation that preempts all
local gun controls.[366] Having been told (p.1240)by the courts that the state constitutional right to
keep and bear arms is unimportant,[367]
many people are taking it seriously anyway.

The great irony of some courts acting as if gun owners have no rights
which the courts are bound to respect is that the gun owners end up recognizing,
correctly, that there is no judicial branch that will protect them from the
excesses of the legislature. Thus, gun owners become much more intensely
involved in the political process, and often succeed in shutting down any
legislative attempt at gun control. Rutgers law professor Robert Cottrol
explained how judicial inaction makes moderate gun control less obtainable:

One motivation for vigorous opposition to such
measures as waiting period and background checks on the part of the NRA and
others is the fear, buttressed by frank admissions on the part of many gun
control advocates, that such steps are simply a back door towards prohibition.
That fear is further fed by those, including many in the federal judiciary,
who urge that the Second Amendment provides no protection against firearms
prohibition.[368]

Imagine how different the political debate on
gun control might be it we simply treated the Second Amendment the way we do
other provisions of the Bill of Rights. There is no viable political movement
lobbying against requirements for parade permits. Why? Because the courts have
made it clear that First Amendment guarantees regarding free speech and
freedom of assembly will be enforced. Another strong signal of the courts'
intentions to enforce the guarantees of the Second Amendment could go a long
way towards furthering the cause of reasonable regulation of firearms
ownership.[369]

Perhaps one should not make too much of the three
state court decisions shredding the state constitutional right to keep and bear
arms. State courts have been striking down unconstitutional gun laws on state
grounds from 1821 through the 1980s,[370]
and the three cases discussed in article may simply represent a brief aberration
in the early 1990s. But to the extent that state courts continue to disrespect
the rights of the fifty percent of families who own firearms--to the extent that
courts continue breaking the law in the name of the law--then courts will
aggravate rather than relieve the current climate of polarization and mistrust
of government.

Footnotes

[**] B.A. 1994, Sonoma State University. Mr. Cramer is pursuing an
M.A. degree in history at Sonoma State University.

[***] J.D. 1995, University of Kansas. Mr. Hattrup is an attorney
in private practice in Overland Park, Kansas.

[1] "A well regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall not be
infringed." U.S. Const. amend.
II.

[2] Virtually all of the scholarship of the last 20 years concurs
that the Second Amendment was originally intended to guarantee an individual
right. See, e.g., Staff of Senate Subcomm. on the
Constitution, 97th Cong., 2d Sess., The Right to Keep and Bear Arms 1, 23
(1982) (noting that enforcement of some federal firearms laws is
consistent with interpretation of Second Amendment as an individual right);
2 Encyclopedia of the American Constitution
1639-40 (Leonard W. Levy et al. eds., 1986) (stating that framers
intended Second Amendment as guarantee of individual's right to bear arms);
Leonard W. Levy, Original Intent and the Framers'
Constitution 341 (1988) (arguing that Second Amendment is most
accurately seen as protection of individual right to bear arms); The Oxford Companion to the United States Supreme Court 763
(Kermit L. Hall et al. eds., 1992) (discussing current debate over
whether Second Amendment intended to protect individual right to bear arms or to
permit states to maintain militias); The Reader's
Companion to American History 477 (Eric Foner & John A. Garrity eds.,
1991) (stating that framers intended Second Amendment to protect
individual citizens); Akhil Amar, The Bill of Rights as a
Constitution, 100 Yale L.J. 1131, 1164 (1991)
[hereinafter Amar, The Bill of Rights] (discussing Second Amendment as
political right of citizenry to prevent government tyranny); Akhil Amar,
The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193, 1264 (1992) [hereinafter Amar,
Fourteenth Amendment] (arguing that incorporation of Bill of Rights
transformed Second Amendment into individual right); David I. Caplan,
The Right of the Individual To Bear Arms: A Recent Judicial Trend, 4
Det. C.L. Rev. 789, 793 (1982)
(arguing that right to bear arms is individual rather than collective right);
Robert J. Cottrol & Raymond T. Diamond, The Second Amendment:
Toward an Afro-Americanist Reconsideration, 80 Geo.
L.J. 309, 314 (1991)
(arguing that individual right interpretation of Second Amendment is more
consistent with historical evidence than collective right theory); Robert
Dowlut, The Right to Arms: Does the Constitution or Predilection of Judges
Reign?, 36 Okla. L. Rev. 65, 67 (1983)
(arguing that framers guaranteed right to bear arms to individuals);
Richard E. Gardiner, To Preserve Liberty--A Look at the Right To Keep
and Bear Arms, 10 N. Ky. L. Rev. 63, 95 (1982)
(arguing that no amount of historical revisionism can deny that right to bear
arms is fundamental individual right); Stephen P. Halbrook, The Right
of the People or the Power of the State: Bearing Arms, Arming Militias, and the
Second Amendment, 26 Val. U. L. Rev. 131, 132 (1991)
(arguing that language and historical intent of Second Amendment mandates
individual right to bear arms); Stephen Halbrook, Encroachments of the
Crown on the Liberty of the Subject: Pre-Revolutionary Origins of the Second
Amendment, 15 U. Dayton L. Rev. 91, 94 (1989)
(arguing that broad language of Second Amendment warrants inference of
individual right); David T. Hardy, Armed Citizens, Citizen Armies:
Toward a Jurisprudence of the Second Amendment, 9 Harv.
J.L. & Pub. Pol'y 559 (1986)
(discussing interpretation of Second Amendment as an individual right and its
effect on gun control); Don B. Kates, Jr., The Second Amendment and the
Ideology of Self-Protection, 9 Const. Commentary 87, 89 (1992)
(arguing that Second Amendment guarantees every adult right to possess most
firearms); Don B. Kates, Jr., The Second Amendment: A Dialogue, 49
Law & Contemp. Probs. 143, 145 (1986)
(arguing that Second Amendment guarantees individual right to keep arms for
self-defense); Don B. Kates, Jr., Handgun Prohibition and the Original
Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 244-52 (1983)
(arguing that Second Amendment is the basis for an individual right to bear
arms, rather than a collective right to bear arms); Nelson Lund, The
Second Amendment, Political Liberty, and the Right to Self-Preservation, 39
Ala. L. Rev. 103, 111 (1987)
(arguing that language of Second Amendment protects individual's right to keep
and bear arms); Sanford Levinson, The Embarrassing Second
Amendment, 99 Yale L.J. 637, 642 (1989)
(observing that armed individuals are sometimes necessary to prevent
governmental tyranny); Joyce Lee Malcolm, The Right of the People To
Keep and Bear Arms: The Common Law Tradition, 10 Hastings
Const. L.Q. 285, 314 (1983)
(arguing that first clause of Second Amendment amplifies scope of right to
individuals); William Marina, Weapons, Technology and Legitimacy: The
Second Amendment in Global Perspective, in Firearms
and Violence: Issues of Public Policy 417, 418 (Don B. Kates, Jr. ed.,
1984) (arguing that individual's Second Amendment right to bear arms not
outmoded by developments in technology); James G. Pope, Republican
Moments: The Role of Direct Popular Power in the American Constitutional
Order, 139 U. Pa. L. Rev. 287, 328 (1990)
(arguing that participation by all individuals is necessary to justify
resistance to government under Second Amendment); Glenn Harlan Reynolds,
The Right To Keep and Bear Arms Under the Tennessee Constitution, 61
Tenn. L. Rev. 647, 650 (1994)
(extensively discussing the Second Amendment in relation to the Tennessee
Constitution); Elaine Scarry, War and the Social Contract: Nuclear
Policy, Distribution, and the Right To Bear Arms, 139 U.
Pa. L. Rev. 1257, 1269 (1991) (arguing that Second Amendment
provides dispersal of military power across the nation); Robert E.
Shalhope, The Armed Citizen in the Early Republic, 49 Law & Contemp. Probs. 125, 141 (1986)
(arguing that framers intended Second Amendment to foster communal
responsibilities while guaranteeing citizens' individual rights); Robert
E. Shalhope, The Ideological Origins of the Second Amendment, 69 J. Am. Hist. 599, 610 (1982)
(arguing that history demonstrates that framers intended to guarantee individual
right to arms and state right to militia); William Van Alstyne, The
Second Amendment and the Personal Right to Arms, 43 Duke
L.J. 1236, 1242
(1994) (arguing that the phrase "well-regulated militia" necessarily
contemplated individual right to bear arms); David E. Vandercoy, The
History of the Second Amendment, 28 Val. U. L. Rev.
1007, 1008
(1994) (contending that framers intended to guarantee individual right to
bear arms in order to throw off collectively the "yokes of any oppressive
government which might arise"); see also Charles L. Cantrell,
The Right To Bear Arms: A Reply, 53 Wis. Bar
Bull. 21, 26 (1980)
(arguing that framers intended Second Amendment to protect individual right to
keep and bear arms); Robert J. Cottrol & Raymond T. Diamond, "The
Fifth Auxiliary Right," 104 Yale L.J. 995, 997-1006 (1995)
(reviewing Joyce L. Malcolm, To Keep and Bear Arms: The
Origin of an American Right (1994)); F. Smith
Fussner, Book Review, 3 Const. Commentary 582 (1986)
(reviewing Stephen Halbrook, That Every Man Be Armed, The
Evolution of a Constitutional Right (1984)); Joyce L.
Malcolm, Essay Review, 54 Geo. Wash. L. Rev. 582
(1986) (same); Cf. Donald L. Beschle, Reconsidering the
Second Amendment: Constitutional Protection for a Right of Security, 9 Hamline L. Rev. 69, 103-04 (1986) (arguing that Second
Amendment intended to guarantee individual's right to personal security, not to
guarantee right to arms); Nicholas J. Johnson, Beyond the Second
Amendment: An Individual Right To Arms Viewed through the Ninth Amendment,
24 Rutgers L.J. 1, 3 (1992)
(arguing that Ninth Amendment protects individual's access to tools for
self-defense); David C. Williams, Civic Republicanism and the Citizen
Militia: The Terrifying Second Amendment, 101 Yale
L.J. 551, 614-15
(1991) (conceding that individual right was intended, but since state
governments have neglected their duties to promote responsible gun use through
drill in a "well-regulated militia," right to arms is no longer valid);
John Schoon Yoo, "Our Declaratory Ninth Amendment", 42 Emory L.J. 967, 976 (1993) (discussing Ninth
Amendment's role in implementing individual rights).

"The people" seems to have been a term of art
employed in select parts of the Constitution .... The Second Amendment
protects "the right of the people to keep and bear Arms," and the Ninth and
Tenth Amendments provide that certain rights and powers are retained by and
reserved to "the people." See also U.S. Const., Amdt. 1 (Congress shall make
no law ... abridging ... the right of the people peaceably to
assemble) .... While this textual exegesis is by no means conclusive, it
suggests that "the people" protected ... by the First and Second Amendments
... refers to a class of persons who are part of a national community or who
have otherwise developed sufficient connection with this country to be
considered part of that community.

In Casey v. Planned Parenthood, 112 S. Ct. 2791
(1992), Justice O'Connor wrote for the majority that the scope of the due
process clause is not limited to "the precise terms of the specific
guarantees elsewhere provided in the Constitution... [such as] the freedom
of speech, press, and religion; the right to keep and bear arms." Id. at 2805 (quoting Poe v. Ulman, 367 U.S. 497,
543 (1961) (Harlan, J., dissenting) (emphasis added)).

[13] Alabama: "That every citizen has a right to bear arms in
defense of himself and the state." Ala.
Const. art. I, § 26.

Alaska: "A well-regulated militia being necessary to the security of
a free state, the right of the people to keep and bear arms shall not be
infringed." Alaska Const. art. 1, §
19.

Arizona: "The right of the individual citizen to bear arms in
defense of himself or the State shall not be impaired, but nothing in this
section shall be construed as authorizing individuals or corporations to
organize, maintain, or employ an armed body of men." Ariz. Const. art. II, § 26.

Arkansas: "The citizens of this State shall have the right to keep
and bear arms for their common defense." Ark.
Const. art. II, § 5.

Colorado: "The right of no person to keep and bear arms in defense
of his home, person and property, or in aid of the civil power when thereto
legally summoned, shall be called in question; but nothing herein contained
shall be construed to justify the practice of carrying concealed weapons." Colo. Const. art. II, § 13.

Connecticut: "Every citizen has a right to bear arms in defense of
himself and the state." Conn. Const. art.
I, § 15.

Delaware: "A person has the right to keep and bear arms for the
defense of self, family, home and state, and for hunting and recreational use."
Del. Const. art. I, § 20.

Florida: "The right of the people to keep and bear arms in defense
of themselves and of the lawful authority of the state shall not be infringed,
except that the manner of bearing arms may be regulated by law." Fla. Const. art. I, § 8(a).

Georgia: "The right of the people to keep and bear arms shall not be
infringed, but the General Assembly shall have power to prescribe the manner in
which arms may be borne." Ga. Const. art.
I, § 1, ¶ 8.

Hawaii: "A well regulated militia being necessary to the security
of a free state, the right of the people to keep and bear arms shall not be
infringed." Haw. Const. art. I, §
17.

Idaho: "The people have the right to keep and bear arms, which
right shall not be abridged; but this provision shall not prevent the passage of
laws to govern the carrying of weapons concealed on the person nor prevent the
passage of any legislation providing penalties for the possession of firearms by
a convicted felon, nor prevent the passage of any legislation punishing the use
of a firearm. No law shall impose licensure, registration or special taxation on
the ownership or possession of firearms or ammunition. Nor shall any law permit
the confiscation of firearms, except those actually used in the commission of a
felony." Idaho Const. art. I, §
11.

Illinois: "Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be infringed." Ill. Const. art. I, § 22.

Indiana: "The people shall have a right to bear arms, for the
defense of themselves and the State." Ind.
Const. art. I, § 32.

Kansas: "The people have the right to bear arms for their defense
and security; but standing armies, in time of peace, are dangerous to liberty,
and shall not be tolerated, and the military shall be in strict subordination to
the civil power." Kan. Const. Bill of
Rights, § 4.

Kentucky: "All men are, by nature, free and equal, and have certain
inherent and inalienable rights, among which may be reckoned: ... Seventh: The
right to bear arms in defense of themselves and of the State, subject to the
power of the General Assembly to enact laws to prevent persons from carrying
concealed weapons." Ky. Const. Bill of
Rights § 1, ¶ 7.

Louisiana: "The right of each citizen to keep and bear arms shall
not be abridged, but this provision shall not prevent the passage of laws to
prohibit the carrying of weapons concealed on the person." La. Const. art. I, § 11.

Maine: "Every citizen has a right to keep and bear arms; and this
right shall never be questioned." Me.
Const. art. I, § 16.

Massachusetts: "The people have a right to keep and to bear arms
for the common defense. And as, in times of peace, armies are dangerous to
liberty, they ought not to be maintained without the consent of the Legislature;
and the military power shall always be held in an exact subordination to the
Civil authority, and be governed by it." Mass.
Const. Part the First, art. xvii.

Michigan: "Every person has a right to keep and bear arms for the
defense of himself and the state." Mich.
Const. art. I, § 6.

Mississippi: "The right of every citizen to keep and bear arms in
defense of his home, person, or property, or in aid of the civil power when
thereto legally summoned, shall not be called in question, but the legislature
may regulate or forbid carrying concealed weapons." Miss. Const. art. III, § 12.

Missouri: "That the right of every citizen to keep and bear arms in
defense of his home, person and property, or when lawfully summoned in aid of
the civil power, shall not be questioned; but this shall not justify the wearing
of concealed weapons." Mo. Const. art. I,
§ 23.

Montana: "The right of any person to keep or bear arms in defense
of his own home, person, and property, or in aid of the civil power when thereto
legally summoned, shall not be called in question, but nothing herein contained
shall be held to permit the carrying of concealed weapons." Mont. Const. art. II, § 12.

Nebraska: "All persons are by nature free and independent, and have
certain inherent and unalienable rights; among these are life, liberty, and the
pursuit of happiness and the right to keep and bear arms for security or defense
of self, family, home, and others, and for lawful common defense, hunting,
recreational use, and all other lawful purposes, and such rights shall not be
denied or infringed by the state or any subdivision thereof." Neb. Const. art. I, § 1.

Nevada: "Every citizen has the right to keep and bear arms for
security and defense, for lawful hunting and recreational use and for other
lawful purposes." Nev. Const. art. I, §
11(1).

New Hampshire: "All persons have the right to keep and bear arms in
defense of themselves, their families, their property and the state." N.H. Const. Part First, art. 2-a.

New Mexico: "No law shall abridge the right of the citizen to keep
and bear arms for security and defense, for lawful hunting and recreational use
and for other lawful purposes, but nothing herein shall be held to permit the
carrying of concealed weapons." N.M.
Const. art. II, § 6.

North Carolina: "A well regulated militia being necessary to the
security of a free State, the right of the people to keep and bear arms shall
not be infringed; and, as standing armies in time of peace are dangerous to
liberty, they shall not be maintained, and the military shall be kept under
strict subordination to, and governed by, the civil power. Nothing herein shall
justify the practice of carrying concealed weapons, or prevent the General
Assembly from enacting penal statutes against that practice." N.C. Const. art. I, § 30.

North Dakota: "All individuals are by nature equally free and
independent and have certain inalienable rights, among which are those of
enjoying and defending life and liberty; acquiring, possessing and protecting
property and reputation; pursuing and obtaining safety and happiness; and to
keep and bear arms for the defense of their person, family, property, and for
lawful hunting, recreational, and other lawful purposes, which shall not be
infringed." N.D. Const. art. I, §
1.

Ohio: "The people have the right to bear arms for their defense and
security; but standing armies, in time of peace, are dangerous to liberty, and
shall not be kept up; and the military shall be in strict subordination to the
civil power." Ohio Const. art. I, §
4.

Oklahoma: "The right of a citizen to keep and bear arms in defense
of his home, person, or property, or in aid of the civil power, when thereunto
legally summoned, shall never be prohibited; but nothing herein contained shall
prevent the Legislature from regulating the carrying of weapons." Okla. Const. art. II, § 26.

Oregon: "The people shall have the right to bear arms for the
defence of themselves, and the State, but the Military shall be kept in strict
subordination to the civil power." Or.
Const. art. I, § 27.

Pennsylvania: "The right of the citizens to bear arms in defense of
themselves and the State shall not be questioned." Pa. Const. art. I, § 21.

Rhode Island: "The right of the people to keep and bear arms shall
not be infringed." R.I. Const. art. I, §
22.

South Carolina: "A well regulated militia being necessary to the
security of a free State, the right of the people to keep and bear arms shall
not be infringed. As, in time of peace, armies are dangerous to liberty, they
shall not be maintained without the consent of the General Assembly. The
military power of the State shall always be held in subordination to the civil
authority and be governed by it." S.C.
Const. art. I, § 20.

South Dakota: "The right of the citizens to bear arms in defense of
themselves and the state shall not be denied." S.D. Const. art. VI, § 24.

Tennessee: "That the citizens of this State have a right to keep
and bear arms for their common defense; but the Legislature shall have power, by
law, to regulate the wearing of arms with a view to prevent crime." Tenn. Const. art. I, § 26.

Texas: "Every citizen shall have the right to keep and bear arms in
the lawful defense of himself or the State; but the Legislature shall have
power, by law, to regulate the wearing of arms, with a view to prevent crime."
Tex. Const. art. I, § 23.

Utah: "The individual right of the people to keep and bear arms for
security and defense of self, family, others, property, or the state, as well as
for other lawful purposes shall not be infringed; but nothing herein shall
prevent the Legislature from defining the lawful use of arms." Utah Const. art. I, § 6.

Vermont: "That the people have a right to bear arms for the defence
of themselves and the State--and as standing armies in time of peace are
dangerous to liberty, they ought not to be kept up; and that the military should
be kept under strict subordination to and governed by the civil power." Vt. Const. ch. I, art. § 16.

Virginia: "That a well regulated militia, composed of the body of
the people, trained to arms, is the proper, natural, and safe defense of a free
state, therefore, the right of the people to keep and bear arms shall not be
infringed; that standing armies, in time of peace, should be avoided as
dangerous to liberty; and that in all cases the military should be under strict
subordination to, and governed by, the civil power." Va. Const. art. I, § 13.

Washington: "The right of the individual citizen to bear arms in
defense of himself, or the state, shall not be impaired, but nothing in this
section shall be construed as authorizing individuals or corporations to
organize, maintain or employ an armed body of men." Wash. Const. art. I, § 24.

West Virginia: "A person has the right to keep and bear arms for
the defense of self, family, home and state, and for lawful hunting and
recreational use." W. Va. Const. art. III,
§ 22.

Wyoming: "The right of citizens to bear arms in defense of
themselves and of the state shall not be denied." Wyo. Const. art. I, § 24.

[14] The fact that only two books have been written on the subject
of state constitutional rights to arms indicates the relative dearth of
scholarship on the subject. Clayton E. Cramer, For the
Defense of Themselves and the State: The Original Intent and Judicial
Interpretation of the Right To Keep and Bear Arms (1994)
(discussing right to bear arms as construed by state and federal courts);
Stephen Halbrook, A Right To Bear Arms: State and Federal
Bills of Rights and Constitutional Guarantees (1989) (tracing
evolution of individual right to bear arms and loss of framers' original intent
in judicial interpretation). For law review articles, see Caplan,
supra note 2, at 789 (discussing
1981 decisions on carrying of arms in Indiana and Oregon); Robert Dowlut,
Federal and State Constitutional Guarantees to Arms, 15 U. Dayton L. Rev. 59 (1989)
(analyzing development of right to bear arms at federal and state level);
Dowlut, supra note 2, passim;
Robert Dowlut & Janet Knoop, State Constitutions and the Right To
Bear Arms, 7 Okla. City U. L. Rev. 177 (1982)
(comparative analysis of state constitutional provisions concerning right to
bear arms); Stephen Halbrook, Second Class Citizenship
and the Second Amendment in the District of Columbia, 5 Geo. Mason U. Civ. Rts. L.J. (forthcoming 1995);
Stephen Halbrook, Rationing Firearms Purchases and the Right To Keep
Arms: Reflections on the Bills of Rights of Virginia, West Virginia, and the
United States, 96 W. Va. L. Rev. 1, 3 (1993)
(comparative analysis of right to bear arms provisions from two state
constitutions and state gun control legislation); Stephen Halbrook, The
Right To Bear Arms in Texas: the Intent of the Framers of the Bills of
Rights, 41 Baylor L. Rev. 629 (1989)
(comparative analysis of Second Amendment with right to bear arms in Texas
Constitution); Stephen Halbrook, The Right To Bear Arms in the First
State Bills of Rights: Pennsylvania, North Carolina, Vermont, and
Massachusetts, 10 Vt. L. Rev. 255 (1985)
(comparing states' Bills of Rights and rights to bear arms); Reynolds,
supra note 2
(discussing Second Amendment in relation to Tennessee constitution).

[19] One prong of the Oregon Supreme Court's test requires that
the weapon "as modified by its modern design and function, is of the sort
commonly used by individuals for personal defense during either the
revolutionary or post-revolutionary era or in 1859 when Oregon's constitution
was adopted." State v. Delgado, 692 P.2d 610, 612 (1984)
(footnote omitted).

[25] The issue on remand is the claim of plaintiffs and the
Attorney General that many of the semiautomatic firearms are named improperly,
because the ordinance specifies the name of an automatic firearm, or a firearm
that does not exist. For example, the ordinance attempts to outlaw "Norinco,
Mitchell and Poly Technologies Avtomat Kalashnikovs (all models)." Den. Rev. Mun. Code, § 38-130(h)(1)a.
"Avtomat" is Russian for "1. any automatic device ... 4. submachine gun."
Kenneth Katzner, English-Russian/Russian-English
Dictionary 418 (1984). The three companies listed (Norinco,
Mitchell, and Poly Technologies) have never sold any automatic firearms or
submachine guns in the United States. Yet the city attorney of Denver insists
that the language bans semiautomatics made by those companies, as well as by
numerous other companies.

[26] Cleveland, Ohio,
Ordinance No. 415-89, § 628.02 (1989). The original version of the
ordinance violated the Supremacy Clause as it conflicted with 18
U.S.C. § 926A (guaranteeing target shooters' right to transport unloaded
guns in interstate commerce notwithstanding gun control laws in jurisdictions
they passed through). The Cleveland City Council re-enacted and amended the law
to resolve the problem. See Arnold v. City of Cleveland,
616 N.E.2d 163, 165 n.2 (Ohio 1993) (noting that conflict corrected).

[27] Section 628.02 of Cleveland Ordinance No. 415-89 defines what
was considered to be an "assault weapon" under the ordinance. The Arnold
court quoted the relevant portion of this section:

(a) 'Assault weapon' means:

(1) any semiautomatic action, center fire rifle
or carbine that accepts a detachable magazine with a capacity of 20 rounds or
more;

(2) any semiautomatic shotgun with a magazine
capacity of more than six rounds;

(3) any semiautomatic handgun that is:

A. a modification of a rifle described in
division (a)(1), or a modification of an automatic firearm; or

B. originally designed to accept a detachable
magazine with a capacity of more than 20 rounds.

(4) any firearm which may be restored to an
operable assault weapon as defined in divisions (a)(1), (a)(2) or (a)(3).

(5) any part, or combination of parts, designed
or intended to convert a firearm into an assault weapon as defined in
divisions (a)(1), (a)(2) or (a)(3), or any combination of parts from which an
assault weapon as defined in divisions (a)(1), (a)(2) or (a)(3), may be
readily assembled if those parts are in the possession or under the control of
the same person.

(b) Assault weapon does not include any of the
following:

(1) any firearm that uses .22 caliber rimfire
ammunition with a detachable magazine with a capacity of 30 rounds or
less.

(2) any assault weapon which has been modified
to either render it permanently inoperable or to permanently make it a device
no longer defined as an assault weapon.

[34] While the case was in progress, Gale Norton defeated Attorney
General Woodard. Norton continued Colorado's participation in the case.

[35] Before going further, we must point out that one of the
authors of this article was involved in the Colorado litigation. David Kopel
represented the State of Colorado in district court. After leaving the Attorney
General's office, he was one of several attorneys who submitted an amicus brief
to the Colorado Supreme Court on behalf of the Colorado Law Enforcement Firearms
Instructors Association, the American Federation of Police, the Congress on
Racial Equality, and other organizations. Readers should, of course, be
skeptical about analyses written by attorneys who participated in a case
discussed in an article. Accordingly, it will not be the objective of this
article to prove that any of these three cases should have come to a different
ultimate result. As we will detail, the laws in question (or at least the core
of the laws) could have been upheld by courts which took the right to arms
seriously, but which viewed the right somewhat more narrowly than we do. For
those who take the right to arms very seriously, parts IV.C and IV.D,
infra, suggest that the laws were void per se. Seeinfratext
accompanying notes 305-23.

[40] With respect to differing legal interpretations of the right
to keep and bear arms, see, e.g., Cramer,
supra note 14, at
33-35.

A third theory concerning the right to keep and bear arms is that
the Second Amendment and its state constitutional analogs guaranteed a right of
the states to organize their own militias. This rationale was almost unknown in
American political discourse until the 1960s. It appeared because unlike prior
gun control movements, whose goal was disarmament of particular segments of the
population (e.g., convicted felons, blacks, and aliens) the modern gun control
movement needed a theory that allowed disarming the entire civilian
population.

[46] For a discussion of the relationship between racism and the
development of American gun control jurisprudence, see Cramer, supra note 14, at
97-141; Clayton E. Cramer, The Racist Roots of Gun Control,
4 Kan. J. L. & Pub. Pol. 17, 22-24 (1995) (calling
for strict scrutiny of gun control legislation in light of its racial effect);
Robert J. Cottrol & Raymond T. Diamond, Never Intended To Be Applied
to the White Population: Firearms Regulation and Racial Disparity, Chi.-Kent L. Rev. (forthcoming 1995); Cottrol
& Diamond, supra note 2, at 319, 359-61
(arguing that African Americans need more protection from the State).

[U]nlike the Mississippi and South Carolina
codes, many subsequent laws made no reference to race, to avoid the appearance
of discrimination and comply with the federal Civil Rights Act of 1866. But it
was well understood, as Alabama planter and Democratic politico John W. DuBois
later remarked, that "the vagrant contemplated was the plantation
negro."

[55] Texas Const. art. I, §
13. The Texas Constitution in effect at the time provided that "every
citizen shall have the right to keep and bear arms, in the lawful defense of
himself and the state." Id.

The constitutional right to bear arms is intended
to guaranty to the people, in support of just government, such right, and to
afford the citizen means for defense of self and property. While this secures
to him a right of which he cannot be deprived, it enjoins a duty in execution
of which, that right is to be exercised. If he employs those arms which he
ought to wield for the safety and protection of his country, his person, and
his property, to the annoyance and terror and danger of its citizens, his acts
find no vindication in the bill of rights.... A man may carry a gun for any
lawful purpose, for business or amusement, but he cannot go about with that or
any other dangerous weapon to terrify and alarm a peaceful
people.

[67] Rinzler v. Carson, 262 So. 2d 661 (Fla.
1972). The statute in question in Rinzler made it unlawful for
"any person to own or to have in his care, custody, possession or control any
short-barreled rifle, short-barreled shotgun, or machine gun which is, or may be
readily operable." Rinzler, 262 So. 2d at 664.

[68]Id. at 666. While the court held
that machine-guns were not constitutionally protected, Florida allowed
possession of machine-guns registered under federal law, and thus a local
ordinance purporting to ban machine-guns was preempted and held invalid. Id. at 667-68. Constitutional protection for machine-guns
would appear to be stronger under the civic republicanism theory (suitable for
militia use) than the classical republican theory (commonly used for personal
protection and sport).

[70]Id. (invalidating a prohibition on the unlicensed open
carrying of pistols). Again, doctrinal lines are not always precise; while civic
republicanism theory was often invoked to uphold restrictions on the carrying of
firearms, in Kerner civic republicanism was affirmed along with the right
to unlicensed carrying.

[79] 235 N.W. 245, 246-47 (Mich. 1931). The
Michigan court upheld the conviction of a felon who possessed a blackjack,
noting that legislation "cannot constitutionally result in the prohibition of
the possession of those arms which, by the common opinion and usage of
law-abiding people, are proper and legitimate to be kept upon private premises
for the protection of person and property." Id. at
247. A later Michigan decision found that an electrical shocking device
(stun gun) was not a commonly possessed, constitutionally protected arm. People v. Smelter, 437 N.W.2d 341, 342 (Mich. Ct. App. 1989).

[90] Ellis, supra note 88, at 42.
For an argument using the Second Amendment to suggest that conscription is
unconstitutional, see Amar, The Bill of Rights, supra note
2, at 1168-73.

[91] William J. Helmer, The Gun That Made
The Twenties Roar 75-76, plate after 86 (1969).

The substitution of machine guns for handguns is but one example of
the unintended consequences that flow from handgun-only controls. Such laws may
increase firearms fatalities by encouraging criminals to switch to sawed-off
shotguns, which are as concealable as a large handgun, and far deadlier. If only
a third of handgun criminals switched to long guns, while the rest gave up crime
entirely, firearms deaths would skyrocket. See Gary Kleck, Point Blank: Guns and Violence in America 91-94,
97 (1991); David T. Hardy & Don B. Kates, Jr., Handgun
Prohibition and Crime, in Restricting
Handguns 118, 129 (Don B. Kates ed., 1984) (citing increased
danger from robbery by shotgun or rifle); Gary Kleck, Handgun-Only
Control, in Firearms and Violence: Issues of Public
Policy 195-99 (Don B. Kates ed., 1984) (same); David Kopel,
Peril or Protection? The Risks and Benefits of Handgun Prohibition, 12
St. Louis U. Pub. L. Rev. 285, 326-32
(1993).

[110] Media coverage of "assault weapon" regulations often shows
automatic weapons blazing away. The Multnomah County ordinance, and its many
counterparts around the United States, however, regulate not machine guns, but
guns that fire one shot for every pull of the trigger.

[150] Proceedings of the Constitutional
Convention Held in Denver, Dec. 20, 1875 (1907).

[151]Id. at 90, 204-05. A "civic
republicanism" theory would tend to limit the arms right to citizens, since
militia service (like jury duty) was the exclusive province of citizens. The
classical liberal theory, focusing on self-defense as a fundamental human
right, would be more likely to embrace the broader vision of an arms right for
all persons.

[158]See, e.g., Fife v. State, 31 Ark. 455, 458
(1876) (holding that constitution guarantees citizens right to keep and
bear arms ordinarily used by a well regulated militia, and those necessary to
resist oppression); Hill v. State, 53 Ga. 472, 474
(1874) (holding that 'arms' meant weapons ordinarily used in battle: guns
of every kind, swords, bayonets, horseman's pistols, etc.); Andrews v. State, 50 Tenn. (3 Heisk) 165, 179
(1871) (holding that right covers arms in use of which a soldier should
be trained including rifles of all descriptions: shot-guns, muskets, and
repeaters; and that constitutional right to keep such arms cannot be infringed
or forbidden by legislature); Aymette v. State, 21 Tenn. (2 Hum.)
154, 158
(1840) (holding that arms include those usually employed in civilized
warfare and ordinary military equipment).

[159] John N. Pomeroy, An Introduction to
the Constitutional Law of the United States 152 (3d ed. 1877).

[160] Draft of a Constitution Published
Under the Direction of a Committee of Citizens of Colorado (Denver
1875).

[161] Williamson, supra note
138, at 13,
36, 49. Henry rifles were commonly sold in Denver as early as 1865, and
were "a strong competitor in the civilian market in the late 1860s" in Colorado.
Louis A. Garavaglia & Charles G. Worman, Firearms of
the American West 106, 116 (1984). Civil War military rifles were
sold at Denver Arsenal. Id. at 111. Also on the scene were
Winchester lever action rifles which fired 18 rounds in 9 seconds.
Id. at 128. In 1871, the Evans rifle appeared, "manufactured
as a sporting rifle, military rifle, and carbine," which held 34 cartridges and
was sold by a Denver dealer. Id. at 189-91.

The Denver Armory advertised the latest firearms in the Rocky
Mountain News in 1876. For example, the issues of April 28 and June 3, 1876
advertised "Sharp's Sporting and Military Creedmoor Rifles." The July 4 edition
described "A New Weapon," namely, "a pistol that can kill at five hundred yards"
for sporting and military use.

[162] The Constitution of the State of
Colorado Adopted in Convention, March 14, 1876; Also the Address of the
Convention to the People of Colorado (Denver, 1876).

[164]Id. The protection offered by the Texas Constitution
was broadened by State v. Duke, 42 Tex. 455, 458-59
(1875) (expanding scope of protection offered to weapons "commonly kept"
and those "appropriate for ... self-defense").

[171] It should be noted that the 1989 Stockton schoolyard
murders were not made worse because murderer Patrick Purdy owned a
semiautomatic. He fired approximately 110 rounds in six minutes. Anyone who was
willing--as Purdy apparently was--to spend some time practicing with guns, could
have speedily reloaded even a simple bolt-action rifle, and fired as many shots
in the same time period. For an account of the Stockton schoolyard massacre, see
Mark A. Stein & Peter H. King, Rifleman Kills 5 at Stockton School:
29 Other Pupils Hurt; Assailant Takes Own Life, L.A.
Times, Jan. 18, 1989, at A1.

Medical technology has greatly outstripped firearms technology in
the past two centuries. Because gunshot wounds are much less likely to result in
fatality today, a criminal firing a semiautomatic gun for a given period (such
as six minutes) today would kill fewer people today than a criminal firing a
more primitive gun two hundred years ago.

[172] One clearly obsolete provision of the Constitution is the
guarantee of federal jury trials when the amount in controversy exceeds $ 20.
U.S. Const. amend. VII. Due to
inflation, a $ 20 case today is immensely less significant than a $ 20 case from
200 years ago. Today, the $ 20 rule impedes judicial efficiency by guaranteeing
a jury trial for even the pettiest of cases. Yet no one suggests that a
legislature could simply ignore the 7th Amendment because of obsolescence. The
only remedy is to propose an amendment.

[174]See, e.g., Kovacs v. Cooper, 336 U.S.
77, 81-82 (1949) (explaining that municipalities may regulate soundtrucks
with regard to place, time and volume but that absolute prohibition is
unconstitutional).

[176] This interpretation places about half of all handguns and a
huge fraction of commonly-used rifles and shotguns completely outside the scope
of the Constitution.

[177] The Oregon dissent/concurrence wrote that "taken to its
logical extension," the majority's reasoning means that "a wide swath" would be
cut "out of a constitutional guarantee." Oregon State Shooting
Ass'n v. Multnomah County, 858 P.2d 1315, 1327 (Or. App. 1993) (en banc)
(Edmonds, J., concurring in part; dissenting in part), review denied,
877 P.2d 1202 (Or. 1994). The majority replied that
other semiautomatics were not at present before the court. Id. at 1321.

[p]lacing the Bill of Rights immediately after
Article I, defining the boundaries of the state, establishes the pre-eminence
of these rights in the order of constitutional commands.... Investiture of
governmental power and of the rule of the majority shall be made only after
certain natural, essential and inalienable rights of the individual are
indelibly inscribed in the Constitution in such manner as will assure that
their integrity remains intact.

[192]Id. at 248. As the dissent
noted, the majority "assumed that the defendant's shotgun is necessarily
included among arms which, under section 13 of article 2, he has 'the right ...
to keep and bear ... in defense of his home, person, and property.'" Id. at 247.

[196]Id. (citations omitted) (emphasis added). The
defendants in Robertson argued that since the word "reasonable" appeared
in various places in the Colorado gun cases, gun laws were to be tested only on
a standard of reasonableness. Defendant's Brief at 14-15,
Robertson v. City of Denver (No. 90CV603), rev'd, 874 P.2d
325 (Colo. 1994). The supreme court essentially adopted this
viewpoint without quite saying so. Robertson, 874 P.2d at
329 (explaining that issue in each case was whether law constitutes
reasonable exercise of state's power). Yet free speech jurisprudence also relies
on the word "reasonable" (as in "reasonable time, place and manner
restrictions"), without requiring that infringements on speech be tested only
under a reasonableness standard. See, e.g., Bock v.
Westminister Mall Co., 819 P.2d 55, 62-63 (Colo. 1991) (conceding that
mall may set reasonable restrictions but holding that they must be subjected to
stringent scrutiny as free speech occupies preferred position in constellation
of freedoms guaranteed by state constitution).

[198]See, e.g., People v. Buckallew, 848
P.2d 904, 908 (Colo. 1993) (holding that a statute is overbroad if it
infringes upon enjoyment of fundamental rights by encompassing those activities
within its prohibition); People v. Gross, 830 P.2d 933, 939 (Colo.
1992) (holding that a penal statute is overbroad if it prohibits
legitimate activity).

[199] Valley Forge Christian College v. Americans
United for Separation of Church & State Inc., 454 U.S. 464, 484
(1982). See also Ullmann v. United States, 350 U.S.
422, 426-29 (1956). The Ullmann Court stated:

This constitutional protection must not be
interpreted in a hostile or niggardly spirit .... As no constitutional
guarantee enjoys preference, so none should suffer subordination or deletion
.... To view a particular provision of the Bill of Rights with disfavor
inevitably results in a constricted application of it. This is to disrespect
the Constitution.

These defendants, however, cannot invoke the
same constitutionally protected right to bear arms as could the defendant in
Lakewood, supra, for ... the right of a convicted felon to bear
arms is subject to reasonable legislative regulation and limitation ....

... To be sure, the state legislature cannot, in
the name of the police power, enact laws which render nugatory our Bill of
Rights and other constitutional protection. But we do not read this statute as
an attempt to subvert the intent of Article II, Section 13. The statute simply
limits the possession of guns and other weapons by persons who are likely to
abuse such possession. That case [Lakewood] involved a municipal
ordinance which forbad the possession, use, or carrying of firearms outside of
one's own home. Such a broad prohibition, we held, unduly infringed on the
personal liberty of bearing arms. However, the defendant in Lakewood v.
Pillow, supra, was not, as far as the record revealed, an ex-felon,
and the issue of whether like restrictions could not constitutionally be
imposed on persons who had been convicted of felonies involving the use of
force or violence or certain dangerous weapons was not there
considered.

[I]n [Blue] the defendants did not
contend that they were armed in order to defend their persons, homes or
property. Therefore the court in Blue left unanswered the question
whether such a defense, if established, would render unconstitutional the
statute's application in a particular case ....

The General Assembly's power to regulate in this
area, however, is subject to the clear constitutional guarantee of the right
to bear arms. A defendant charged under section 18-12-108 who presents
competent evidence showing that his purpose in possessing weapons was the
defense of his home, person, and property thereby raises an affirmative
defense.

Id. (footnote omitted). Thus, Ford
carved out a special test to allow felons to possess firearms if they prove that
the possession is specifically for defense. This was the same test which the
Colorado Supreme Court rejected as applied to law-abiding persons in People v. Nakamura, 62 P.2d 228, 247-48 (Colo. 1936).

In People v. Garcia, the Colorado Supreme Court upheld a
restriction on actual, immediate possession of a firearm while intoxicated.
595 P.2d 228, 231 (Colo. 1979) (en banc). The court
reaffirmed the idea that possession of firearms (absent intoxication) is a
fundamental right by explaining that:

The overbreadth doctrine is applicable to
legislative enactments which threaten the exercise of fundamental or express
constitutional rights, such as ... the right to bear arms. City of Lakewood v. Pillow 180 Colo. 20, 501 P.2d 744
(1972) ....

In City of Lakewood, supra, we
noted that the ordinance at issue there prohibited legitimate acts, such as
business operations of gunsmiths, pawnbrokers and sporting goods stores, or
keeping a gun for the purpose of defense of self or home and that such acts
could not reasonably be considered unlawful under an exercise of police power.
Subjecting legitimate behavior to criminal sanctions thus rendered the
ordinance overbroad.

Such is not the instant case. It is clearly
reasonable for the legislature to regulate the possession of firearms by those
who are under the influence of alcohol or drugs. Unlike City of
Lakewood, supra, the statute here proscribes only that behavior
which can rationally be considered illegitimate, and thus properly prohibited
by the state's exercise of its police power.

Id. at 230.

Although Garcia did use the word "rational," that word does
not prove that the right to bear arms is non-fundamental and subject only to a
rational basis test. After all, it is keeping and bearing arms, not carrying
firearms while drunk or drugged, that is a fundamental right. By analogy, the
right to assemble does not sanction being intoxicated in public, just because
one is at an assembly. A restriction on drunken behavior, not being a
constitutional right, would be judged by the rational relation test.

W.Va.Code, 61-7-1 [1975]
thus prohibits the carrying of weapons for defense of self, family, home and
state without a license or statutory authorization. Article III,
section 22 of the West Virginia Constitution, however, guarantees that
a person has the right to bear arms for those defensive purposes. Thus, the
statute operates to impermissibly infringe upon this constitutionally
protected right to bear arms for defensive purposes.

[229]Id. The Third Circuit noted these factors in
distinguishing Lambert when it faced the issue of whether a convicted
felon charged with possession of a firearm in contravention of the Gun Control
Act of 1968 could assert a Lambert defense. United States
v. Weiler, 458 F.2d 474, 479 (3d Cir. 1972). Lambert had no knowledge
that she would give up her right to travel. Lambert, 355
U.S. at 229. However, it is common knowledge that convicted felons give
up other rights, including the right to possess or transport firearms. Weiler, 458 F.2d at 479.

[236]Id. Freed was accused of violating 26
U.S.C. § 5812, which requires weapons covered by the Act to be registered
prior to transfer, the transferor and transferee to make application to the
Secretary of the Treasury, and the transfer be approved by the Secretary of the
Treasury. Id. at 604.

[245] The public safety concerns that motivated the registration
ordinance could, however, also have been said to be present in Lambert.
The government wanted to know where felons were at all times not merely so that
it could accumulate records, but so that the government could prevent felons
from harming other persons. Cf. People v. Lambert, 355 U.S.
217, 229 (1957) (asserting that registration statutes exist for
convenience of law enforcement).

[246] See supra note 238 and
accompanying text
for a discussion of the Supreme Court's view of what constitutes a "dangerous
and deleterious devise."

In determining the constitutionality of an
ordinance, we are mindful of the fundamental principal requiring courts to
presume the constitutionality of lawfully enacted legislation .... Further,
the legislation being challenged will not be invalidated unless the challenger
establishes that it is unconstitutional beyond a reasonable
doubt.

Id. (citations omitted). See text
accompanying note 267,
supra, for the standard of review as articulated by the
Hilton court.

Respecting, as we do, the legislative authority
of the city council and its right to determine what ordinances shall be
passed, yet when an act of such body is challenged we must determine whether
the act conforms to rules of fundamental law designed to curb and check
unwarranted exercise of unreasonable and arbitrary power. With these
principals in mind, let us consider whether this ordinance bears a real and
substantial relation to the health, safety, morals or general welfare of the
public.

[273] 151 N.E. 775 (Ohio 1926), aff'd, 275 U.S. 505 (1927). Kresge involved a challenge to
a municipal ordinance requiring all commercial and industrial buildings to have
outward opening doors, and prohibiting rolling, sliding, or revolving doors.
Id. at 776. These restrictions were deemed necessary
to protect occupants in case of fire. The restrictions were challenged as an
undue restriction of the plaintiff's business. Id. The court of common
pleas and the Ohio Court of Appeals both found the restrictions unreasonable,
granting the plaintiff's request for an injunction. The Ohio Supreme Court
reversed these decisions, upholding the constitutionality of the municipal
restriction. Id.

[274] 281 N.E.2d 21 (Ohio Ct. App. 1972).
Alsenas was a challenge to a municipal zoning ordinance. The plaintiff
was restricted to developing only single family residences on land on which he
held a purchase option instead of the multi-family apartments which he wished to
build. Id. at 22. The plaintiff was limited in the
number of single family residences he could build because of the topography of
the land in question. Id. The plaintiff challenged the zoning ordinance
as a taking. The trial court found that only 38% of the plots on the land could
be developed under existing zoning restrictions, and declared the zoning
ordinance unconstitutional as applied to the land in question. The court of
appeals reversed, finding the ordinance constitutional. Id.
at 26.

[275] 383 N.E.2d 892 (Ohio 1978).
Renalist was a challenge to a state restriction on acting as a real
estate broker without a license. The defendant had compiled information about
rental properties and sold it to potential renters. Id. at
893. The defendant challenged the licensing requirement as a violation of
its right to engage in commercial speech. Id. at
894.

[276] 120 N.E. 836 (Ohio 1918). This case
concerned a petition for a writ of mandamus to the City Building Commissioner to
reissue a building permit previously issued and revoked. Id. at 837. The petitioner had received a building permit
and was building an animal hair processing plant within the limits of
Cincinnati. After the petitioner had begun construction, the city council
proposed and passed an ordinance prohibiting the construction or use of any
building in Cincinnati for the purpose of processing animal hair.
Id.

[279]See, e.g., Posades de Puerto Rico
Ass'n v. Tourism Co., 478 U.S. 328, 340 (1986) (remarking that commercial
speech receives limited First Amendment protection so long as it concerns lawful
activity and is not misleading or fraudulent); Central Hudson Gas
& Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 563 (1980)
(noting that protection available for particular commercial speech turns on
nature both of the expression and of governmental interest served by its
regulation).

To the extent that the Ohio cases did involve First Amendment
commercial speech, they may have been wrongly decided. See Edenfield v. Fane, 113 S. Ct. 1792, 1799 (1993) (government
carries burden of proof that regulation on commercial speech advances the
government interest in a direct and material way).

[284] Ohio Pub. Interest Action Group, Inc. v.
Public Utilities Comm'n, 331 N.E.2d 730 (Ohio 1975). In this case, a
public interest group challenged the Ohio Legislature's prohibition of any state
agency from restricting advertising by any regulated public utility. Id. at 733. The interest group wanted the regulatory
boards to prohibit the utilities from advertising. Id. at
735. The constitutional challenge involved the group's assertion that
allowing advertising by the utilities was contrary to the "common welfare"
clauses of the United States and Ohio Constitutions. Id. at
733.

[285] State ex rel. Dickman v. Defenbacher,
128 N.E.2d 59, 60-61 (Ohio 1955), was a challenge to an act of the Ohio
Legislature appropriating funds to several veterans organizations for the
purposes of rehabilitating war veterans and promoting patriotism. The
challengers were taxpayers who questioned the constitutionality of giving state
funds to private organizations solely for the benefit of those organizations'
members. Id. at 61. The Ohio Supreme Court upheld
the appropriation as a proper legislative determination of what constituted a
public good. Id. at 65, 67.

[286] Cincinnati v. Welty, 413 N.E.2d 1177 (Ohio
1980), cert. denied, 451 U.S. 939 (1981). The
appellees were convicted of violating this ordinance by driving a Sherman tank
and a "half-track" on the city streets. Id. The supreme court upheld the
ordinance, stating that the appellees, who had prevailed in the court of
appeals, had the burden of proving by "clear and convincing evidence" that the
ordinance lacked a "real and substantial relation" to the purpose of preserving
street surfaces. Id. at 1178.

[287] Benjamin v. City of Columbus, 146 N.E.2d 854,
857 (Ohio 1957), cert. denied, 357 U.S. 904
(1958). Benjamin involved a municipal ordinance making it a
misdemeanor to possess pinball games because of the possibility that the games
could be converted to gambling devices, regardless of whether the games had been
converted. Id. The Ohio Supreme Court upheld this ordinance using a
standard which presumed that an exercise of the police power was valid. Id. at 859. The court indicated that legislative
enactments were presumed to "bear a real and substantial relation to the public
health, safety, morals or general welfare of the public." Id. at 860. The court also indicated that it would not
invalidate an enactment unless the legislative decisions on the constitutional
questions were "clearly erroneous." Id.

[293]Arnold, 616 N.E.2d at 176-77
(Hoffman, J., concurring in part and dissenting in part).

[294] The Arnold dissent characterized the appropriate
standard of review as follows:

[A] stricter standard must be utilized when the
legislation places restrictions upon fundamental rights, particularly where
the legislation prescribes an outright prohibition of possession as opposed to
mere regulation of possession. A "strict scrutiny," test, i.e., whether the
restriction is necessary to promote a compelling governmental
interest, as opposed to the less demanding "reasonable" or "rational
relationship test" ought to be applied.... Exercise of the police power may
not be achieved by a means which sweeps unnecessarily broadly. Lakewood v. Pillow (1972), 180 Colo. 20, 501 P.2d
744.

[297]Id.; see also State v. Nieto,
130 N.E. 663, 664 (Ohio 1920) (remarking that police power has bounds and
noting that state constitution contains no prohibition against legislature
making police regulations "as may be necessary for the welfare of the
public at large as to the manner in which arms shall be borne") (emphasis
added).

[298]Id. at 6. For example, one
Colorado case invoked Lakewood to find as unconstitutionally overbroad a
statute prohibiting operation of a motor vehicle with a suspension system
altered from the manufacturer's original design. People v. Von
Tersch, 505 P.2d 5, 6 (Colo. 1973).

[299] See supra note 209 for a
discussion of some cases that cited Lakewood's application of the
overbreadth doctrine.

[301] People v. Seven Thirty-Five East Colfax, 697
P.2d 348, 370 (Colo. 1985) notes, "the state has demonstrated no interest
in the broad prohibition of these articles sufficiently compelling to justify
the infringement on the privacy right of those seeking to use them in legitimate
ways. Thus, we hold the statutory prohibition against the promotion of obscene
devices to be unconstitutional." Id.

[302] City of Lakewood v. Pillow, 501 P.2d 744, 745
(Colo. 1972) (stating narrow means should be employed when end can be
achieved in that way). Cf. People v. French, 762 P.2d 1369,
1374-75 (Colo. 1988) (various restrictions on fundraising, a First
Amendment activity, were unconstitutional because more narrowly tailored options
were available to achieve desired end).

[W]e accept the premises of this legislation
[against sexualized depictions of women]. Depictions of subordination tend to
perpetuate subordination. The subordinate status of women in turns leads to
affront and lower pay at work, insult and injury at home, battery and rape on
the streets .... Yet all is protected as speech, however
insidious.

Id. at 329-30.

[307]Arnold, 464 P.2d at 517-18
(vagrancy ordinance stricken, although city argued "forcefully and quite
compellingly" that ordinance was necessary to fight crime). The Arnold
court described the limits of the state police power as follows:

[N]o matter how necessary to law enforcement a
legislative act may be, if it materially infringes upon personal liberties
guaranteed by the constitution, then that legislation must fail. Grim as it
may be, if effective law enforcement must be dependent upon unconstitutional
statutes, then the choice of the way ahead is for the people to act or fail to
act under the amendatory processes of the constitution.

Id.

[308]Compare Brandon Centerwall, Homicide and
the Prevalence of Handguns: Canada and the United States, 1976 to 1980, 134
Am. J. Epidemiology 1245, 1248 (1992) (analyzing
handgun homicides in United States and Canada and concluding that prevalence of
handguns does not increase homicide rate) with Brandon Centerwall,
Exposure to Television As a Risk Factor for Violence, 129 Am. J. Epidemiology 643, 651 (1989) (concluding that
exposure to television is responsible for major fraction of inter-personal
violence in United State) and Brandon Centerwall, Young Adult
Suicide and Exposure to Television, 25 Soc. Psy. And
Psychiatric Epidemiol. 121, 151-52 (1990) (comparing suicide
trends in United States, Canada and South Africa and concluding that exposure to
television is significant risk factor for young adult suicide).

[309] University of Cal. Regents v. Bakke, 438 U.S.
265, 307 (1978) (plurality opinion of Powell, J.). Similarly, no matter
how compelling a state interest in differentially distributing services in light
of its citizens' length of residence may be, "that objective is not a legitimate
state purpose" under equal protection and the right to travel. Zobel v. Williams, 457 U.S. 55, 63 (1982).

[310] Kingsley Int'l Pictures Corp. v. Regents of
the Univ. of New York, 360 U.S. 684, 688-89 (1959) (stating that
Constitutional guarantee is not confined to expression of ideas that are
conventional or shared by majority); see alsoAmerican
Booksellers, 771 F.2d at 330-33 (holding unconstitutional ordinance
which regulated pornography).

The Council finds and declares that the
proliferation and use of assault weapons is resulting in an ever-increasing
wave of violence in the form of uncontrolled shootings in the City, especially
because of an increase in drug trafficking and drug-related crimes, and poses
a serious threat to the health, safety, welfare and security of the citizens
of Cleveland. The Council finds that the primary purpose of assault weapons is
anti-personnel and any civilian application or use of such weapons is merely
incidental to such primary antipersonnel purpose. The Council further finds
that the function of this type of weapon is such that any use as a
recreational weapon is far outweighed by the threat that the weapon will cause
injury and death to human beings. Therefore, it is necessary to establish
these regulations to restrict the possession or sale of these weapons. It is
not the intent of the Council to place restrictions on the use of weapons
which are primarily designed for hunting, target practice, or other legitimate
sports or recreational activities.

(a) Legislative intent. The city council
hereby finds and declares that the use of assault weapons poses a threat to
the health, safety and security of all citizens of the City and County of
Denver. Further, the council finds that assault weapons are capable both of a
rapid rate of fire as well as of a capacity to fire an inordinately large
number of rounds without reloading and are designed primarily for military or
antipersonnel use.

[316] Denver, Colo. Rev. Mun.
Code art. IV, § 38-130. Seesupra note 314. A
later paragraph did disavow any intent to restrict "weapons which are primarily
designed and intended for ... legitimate sports or recreational activities and
the protection of home, person and property." Denver, Colo. Rev. Mun. Code, art. IV, § 38-130(a)
(emphasis added). The disavowal's dishonesty is evident by comparison to the
California Roberti-Roos Act after which the Denver Ordinance is modeled.
California's constitution has no right to keep and bear arms and the
Roberti-Roos Act made no pretense that defensive firearms were exempted. Cal. Penal Code § 12275.5 (West 1989)
disavows only the intent to restrict "weapons which are primarily designed and
intended for ... legitimate sports or recreational activities." Denver made no
independent examination of the arms to be banned. Denver simply parroted the
California list of banned firearms and the California disavowal of intent to
harm sports, but added a false disavowal of intent to ban arms designed for
self-defense. Indeed, so blithely did Denver follow California that Denver
banned various misnamed and non-existent firearms which were on the California
list. Compare Denver, Colo. Rev. Mun.
Code, art. IV, § 38-130(h) (listing specific prohibited "assault
weapons") with Cal. Penal Code §
12276 (West 1989).

Assault weapons are identified a such herein
because their design, high rate of fire and capacity to cause injury render
the a substantial danger to human life and safety, outweighing any function as
a legitimate sports or recreational firearm.

The Court finds that limiting the use of the
weapons in such a manner that the weapons cannot be legally used for the
purpose of defense of person, property or home is in direct conflict with
Article II, Section 3 and 13, of the Colorado Constitution. The ordinance
makes unlawful the possession of an assault weapon, notwithstanding that the
possessor is otherwise in legal possession, when the possessor uses the weapon
for defense of home person or property. Therefore, Section 38-130(e)(3) of the
ordinance is unconstitutionally overbroad as it pertains to persons in legal
possession of an assault weapon. It precludes Constitutionally protected
conduct.

[337] For a more recent version of such data, see David B.
Kopel, Rational Basis Analysis of "Assault Weapon" Prohibition, 20 J. Contemp. L. 381, 404-10
(1994) (summarizing police data from around nation).

The defendants and their amici did not challenge the veracity or
reliability of the police data, but did offer as counter-evidence (1) numerous
assertions (without any data) from various government employees that "assault
weapons" were a serious problem; and (2) a series of newspaper articles from the
Atlanta Constitution which, after reviewing BATF trace data, reported
that "assault weapons" were ten percent of crime guns. Jim Stewart &
Andrew Alexander, Assault Guns Muscling in on Front Lines of Crime, Atlanta J.-Atlanta Const., May 21, 1989, at A1, A8.
Only two percent of crime guns were traced, and many gun traces do not involve
crime guns. Thus, as the courts were told, the Bureau of Alcohol, Tobacco &
Firearms (BATF), the bureau which conducted the traces, specifically denied the
Atlanta newspaper's assertions. Letter from Daniel M. Hartnett, Director,
Bureau of Alcohol, Tobacco & Firearms, to Rep. Richard T. Schulze, 3 (March
31, 1992) ("concluding that assault weapons are used in 1 of 10 firearms
related crimes is tenuous at best since traces and/or the UCR [FBI Uniform Crime
Reports] may not truly be representative of all crimes").

[338]SeeRobertson, 874 P.2d at
333 (terming irrelevant, for constitutional purposes, statistics which
support inference that ban on weapons unlikely to have effect on crime); Arnold v. City of Cleveland, 616 N.E.2d 163, 173 (Ohio 1993)
(stating that even if statistics presented are accurate, threat to public safety
is not diminished).

[339] Given that both cases involved pretrial motions, the courts
had to assume that all facts would be found as the plaintiffs might have been
able to prove at trial. Seesupra note 328 and
accompanying text.

[340] It is true that while courts do not require strong proof
that obscenity causes harm, courts still uphold obscenity laws. But in contrast
to non-obscene, erotic speech, obscene speech may not be considered "speech"
within the meaning of "speech" when used as a First Amendment term of art.
See, e.g., Frederick Schauer, Causation Theory and the Causes of
Sexual Violence, 1987 Am. B. Found. Res. J. 737, 763
& n.57 (1987); Frederick Schauer, Codifying the First
Amendment: New York v. Ferber, 1982 Sup. Ct. Rev.
285, 285-86 (1982) (noting that child pornography is unanimously held to
be "unprotected by the First Amendment"). Similarly, the Oregon Court of Appeals
found that certain semiautomatics were not "arms" within the meaning of the
Oregon Constitution. Oregon State Shooting Ass'n v. Multnomah
County, 858 P.2d 1315, 1318-20 (Or. Ct. App. 1993), rev. denied, 877 P.2d 1202 (1904). In contrast, the Colorado and Ohio
courts never theorized that "assault weapons" were not among the "arms"
protected by their states' constitutions. SeeRobertson, 874 P.2d at 328; Arnold,
616 N.E.2d at 169-70 (discussing language of Ohio Constitution but not
addressing definition of "arms"). Rather, those courts found that prohibition of
some arms were reasonable as long as others were not prohibited. SeeRobertson, 874 P.2d at 333 (concluding that statute
not invalid because it might have gone further in regulating arms); Arnold, 616 N.E.2d at 173 (stating city would have
violated its authority had it banned all firearms).

[341] "It is not the intent of the Council to place restrictions
on the use of weapons which are primarily designed and intended for hunting,
target practice or other legitimate sports or recreational activities." Cleveland, Ohio, Ordinance ch. 628 §
628.01.

[342]SeeArnold, 616 N.E.2d at
173 (stating appellants can prove no set of facts that would entitle them
to relief).

[344] Similarly, the Ohio Court of Appeals in Hale upheld
the constitutionality of Columbus's "assault weapon" ordinance, doing so using a
rational basis test that considered whether the ordinance had a real and
substantial relationship to the health and welfare of the citizens of Columbus.
In so doing, the court expressly declined to overrule the findings of the city
council that gun registration would benefit the citizens of Columbus. Hale v. City of Columbus, 578 N.E.2d 881, 884-86 (Ohio Ct. App. 1990),
cause dismissed, 569 N.E.2d 513 (Ohio
1991).

Realistically speaking, the idea that there is some kind of
distinction between "sporting" firearms and "anti-personnel" firearms is
nonsense; guns have always been designed for both purposes, and often what makes
a gun good for one purpose tends to make it good for the other. For example, in
a gun reference book cited by the Colorado Supreme Court (and by the City of
Denver), one chapter details how slide and pump action shotguns such as the
Winchester Model 1897 and the Remington Model 1910 were selected by the U.S.
Army for combat use. In combat, these guns "induced pure 'battle terrorism.'" So
devastating was the "terrible effectiveness" of these "trench guns" and "riot
guns" during World War I that the German government protested that their use
violated the articles of war. The Winchester Model 12 and Model 97 pump action
guns were widely used in the Pacific during World War II and in Korea. The Model
12 "proved ideal in the jungles of Vietnam." The Winchester Model 97, which "can
be emptied quickly by holding the trigger down and pumping the handle," is
reliable and has been the weapon of choice for many in the police and military.
Jack Lewis, Assault Weapons 208-14 (1st ed.
1986). See also Jack Lewis, Assault
Weapons 223 (2d ed. 1989). These Winchester and Remington shotguns
are unquestionably rapid fire combat shotguns, having (unlike the shotguns
banned by various "assault weapon" laws) been selected for use in combat. Yet
these guns, because they are widely owned, commonly used for hunting and skeet
shooting, have a traditional appearance, and were invented many decades ago, are
somehow considered "legitimate" sporting firearms.

In the "assault weapon" case, the Oregon Court of Appeals claimed
that "assault weapons" are not used for defense, making the point that "the
listed weapons are called assault weapons for a reason." Oregon
State Shooting Ass'n v. Multnomah County, 858 P.2d 1315, 1320 (Or. Ct. App.
1993), review denied, 877 P.2d 1202 (1994).
By doing so, the court ignored the Delgado court's rejection of this
distinction: "It is not the design of the knife but the use to which it is put
that determines its 'offensive' or 'defensive' character." State
v. Delgado, 692 P.2d 610, 612 (Or. 1984).

[354]See Sanford Levinson,
Constitutional Faith 52 (1988) (arguing that "Death of
Constitutionalism" and "Death of God" have arisen from same forces). See
also Levinson, supra note 2, at 643-57
(surveying various theories of constitutional interpretation and concluding that
all of them suggest treating Second Amendment as respected individual
right).

[361] A few weeks after the November 1994 elections, President
Clinton telephoned one of the leading Democratic supporters of the "assault
weapon" ban. After congratulating the Congressman on his re-election, the
President opined that the "assault weapon" ban had cost the Democrats twenty-one
seats in the House of Representatives. President Clinton later told the
Cleveland Plain-Dealer that the "assault weapon" issue and the National
Rifle Association's efforts had given the Republicans twenty additional seats.
Evelyn Theiss, Gun Lobby Shot Down Democrats in Congress: Clinton
Confident of Comeback, Plain Dealer (Cleveland) Jan.
14, 1995, at A1 ("The fight for the assault-weapons ban cost 20 members
their seats in Congress .... The NRA is the reason the Republicans control the
House").

The President's conclusion was consistent with analysis in
Campaigns and Elections magazine, which identified numerous Congressional
races in which the winning (pro-gun) candidate's margin of victory was smaller
(often much smaller) than the number of self-identified NRA supporters in the
district (or state). Brad O'Leary, Fire Power, Campaigns & Elections, Dec./Jan. 1995, at 32-34. Of
the 55 House races and ten Senate races identified, 38 House races and seven
Senate races resulted in a pro-gun Republican taking the seat away from
Democratic control (by defeating an incumbent, or, more typically, winning an
open seat from which a Democrat was retiring). Ten Senate races also involved a
pro-gun winner winning by less than the number of self-identified NRA members in
the state. Id.

[363] For an account of the intensity of the fervor of gun-rights
advocates in the 1994 Ohio election, see Mary Beth Lane, Protestors
Come Out Gunning for Reno; Demonstrators Attack Her Gun-Control Stand, Plain Dealer, July 7, 1994, at 5B.

[364] Four years before, Freese, then the chair of the state
Democratic party, had worked to re-elect incumbent Attorney General Duane
Woodard, even though Woodard had sent the Attorney General's office into battle
against the Denver gun ban. See Peter Blake, Dick Freese
considers attorney general bid, Rocky Mountain News,
May 3, 1993, at 5A.

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